Stanley v. Ayers

Filing 276

ORDER Re Exhaustion; Proposition 66 Stay; Motion for Equitable Relief; Administrative Motion for Leave to File Surreply; Motion for Sanctions; and Request for Hearing Re Excusing Exhaustion Requirement 226 228 260 262 274 . Signed by Judge Edward M. Chen. (emcsec, COURT STAFF) (Filed on 5/22/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DARREN CORNELIUS STANLEY,

Case No. 07-cv-04727-EMC

8

Plaintiff,

DEATH PENALTY CASE

v.

9
10

ROBERT AYERS, et al.,
Defendants.

11
12
For the Northern District of California

United States District Court

ORDER RE EXHAUSTION;
PROPOSITION 66 STAY; MOTION
FOR EQUITABLE RELIEF;
ADMINISTRATIVE MOTION FOR
LEAVE TO FILE SURREPLY; MOTION
FOR SANCTIONS; AND REQUEST
FOR HEARING RE EXCUSING
EXHAUSTION REQUIREMENT

13
14

Docket Nos. 226, 228, 260, 262, 274

15
16

I.

17

INTRODUCTION

Petitioner Darren Cornelius Stanley filed a finalized Petition for Writ of Habeas Corpus on

18

October 12, 2016. Docket No. 252. On December 12, 2016, Respondent Ron Davis filed a Joint

19

Statement Regarding Exhaustion (―Joint Statement‖) and a Motion to Dismiss the petition for

20

failure to exhaust all claims (―Motion to Dismiss‖). Docket Nos. 259-60. The Joint Statement

21

informed the Court that the parties agreed Claims 5, 6, 16, 17A, 17B, 17C, 17F, 17G, and 17H

22

were exhausted but disagreed as to the exhaustion status of all other claims. Docket No. 259 at 2-

23

3.

24

On January 17, 2017, Petitioner filed an opposition to the Motion to Dismiss. Docket No.

25

261. Petitioner requested a stay until California‘s Proposition 66 is certified and no longer stayed

26

by the California Supreme Court, renewed his Motions for Equitable Relief and for Sanctions

27

(Docket Nos. 226, 228), and requested that the Court grant a hearing on excusing the exhaustion

28

requirement pursuant to 28 U.S.C. § 2254(e)(2)(A)(ii) & (b)(1)(B) (―section 2254‖). Docket No.

1

261. Briefing on the various motions ensued. See Docket Nos. 263, 266, 267, and 269. A hearing

2

was held on March 9, 2017. Petitioner subsequently filed an Administrative Motion for leave to

3

file a surreply (―Administrative Motion‖) in relation to his Motion for Sanctions. See Docket No.

4

274. Respondent filed an opposition. See Docket No. 275.

5

For the foregoing reasons, the Court finds that Claims 1, 2, 7, 10, 11, 13, 14, and 19 are

6

fully unexhausted and Claims 3, 4, 8, 9, 12, 15, 17 (including 17D and 17E), 18, and 20 are

7

partially unexhausted. Respondent‘s Motion to Dismiss is DENIED WITHOUT PREJUDICE.

8

Respondent may renew the motion for the Court‘s consideration following the filing of

9

Petitioner‘s motion to dismiss unexhausted claims or request for a stay pursuant to Rhines v.

related to his Motion for Sanctions is GRANTED. Petitioner‘s request for a stay until Proposition

12
For the Northern District of California

Webber, 544 U.S. 269, 277 (2005). Petitioner‘s Administrative Motion for leave to file a surreply

11

United States District Court

10

66 is certified and no longer stayed, request for a hearing on excusing the exhaustion requirement,

13

and Motion for Equitable Relief (Docket No. 226) are DENIED. Petitioner‘s Motion for

14

Sanctions (Docket No. 228) is DENIED WITHOUT PREJUDICE.

15

II.

BACKGROUND

16

Petitioner was sentenced to death by the Superior Court of California in the County of

17

Alameda in 1991. The California Supreme Court affirmed Petitioner‘s convictions and death

18

judgment on direct appeal in 2006, People v. Stanley, 39 Cal. 4th 913 (2006), and summarily

19

denied his petition for writ of habeas corpus in 2009, In re Stanley on Habeas Corpus, S106165.

20

While his state habeas case was still being litigated, Petitioner initiated the present habeas action

21

by asking the Court to appoint counsel and to stay his execution on September 13, 2007.

22

Petitioner, acting pro se, filed a protective petition on July 8, 2010.

23

On November 28, 2011, the Court issued a stay of this matter in order to examine issues

24

related to Petitioner‘s competency under Rohan v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003).

25

Docket No. 39. On July 16, 2013, the stay was partially lifted in order to examine issues related to

26

Petitioner‘s competency under Ford v. Wainwright, 477 U.S. 399 (1986), and to refer the case for

27
28

2

1

settlement. Docket No. 106. After disposing of three previous motions1 for equitable tolling, on

2

March 10, 2016, the Court lifted its stay and granted Petitioner‘s fourth Motion for Equitable

3

Tolling. Docket No. 214.
III.

4
5

A.

DISCUSSION

Legal Standard

6

1.

Exhaustion

7

A federal court may not grant habeas relief until the petitioner has exhausted available state

8

remedies with respect to each claim. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270

9

(1971). The exhaustion doctrine rests on principles of comity and federalism. Rose v. Lundy, 455

enforcement of federal law; (2) prevent disruption of state court proceedings; and (3) reduce

12
For the Northern District of California

U.S. 509, 515 (1982). Exhaustion is required to: (1) protect the state court‘s role in the

11

United States District Court

10

piecemeal litigation. Id. at 518-20.

13

A federal constitutional claim is exhausted when it has been ―fairly presented‖ to the

14

highest state court and that court has had a meaningful opportunity to apply controlling legal

15

principles to the facts underlying the claim. Picard, 404 U.S. at 276-77; Anderson v. Harless, 459

16

U.S. 4, 7 (1982); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.

17

1021 (1986). A claim has been ―fairly presented‖ if the petitioner described in state court both the

18

legal theories and the operative facts on which he bases the claim. Picard, 404 U.S. at 277-78.
To fairly present the legal theory of a claim, a petitioner must alert the state court that he is

19
20

asserting a federal constitutional claim, either by citing the constitutional provision on which he

21

relies or otherwise advising the court of the claim‘s federal basis. Duncan v. Henry, 513 U.S. 364,

22

365-66 (1995) (petitioner failed to fairly present Fourteenth Amendment due process claim when

23

he alleged only that prejudice outweighed probative value of admitted evidence); Johnson v.

24

Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (petitioner did not fairly present Fourteenth Amendment

25

due process claim by asserting that admission of prior act evidence ―infringed on his right to

26
27
28

1

The Court denied without prejudice Petitioner‘s pro se Motion for Equitable Tolling (Docket No.
10), granted in part and denied in part a second motion (Docket No. 26), and denied without
prejudice a third motion (Docket No. 106).
3

1

present a defense and receive a fair trial‖); Picard, 404 U.S. at 277-78 (petitioner must present

2

state courts with same claim he urges upon the federal courts); see Baldwin v. Reese, 541 U.S. 27

3

(2004) (petitioner did not fairly present ineffective assistance of appellate counsel claim when he

4

did not explicitly include those words, cite the relevant federal constitutional provisions, or

5

otherwise cite to cases showing he was making a federal claim); Castillo v. McFadden, 399 F.3d

6

993, 1002 (9th Cir. 2004) (petitioner did not give state appellate court fair opportunity to rule on

7

federal due process claim by concluding his brief with ―scattershot citation of federal

8

constitutional provisions‖ with no articulated federal legal theory).

9

The factual basis of a claim has been fairly presented as long as the facts subsequently

court, Vasquez v. Hillery, 474 U.S. 254, 260 (1986); Chacon v. Wood, 36 F.3d 1459, 1468 (9th

12
For the Northern District of California

alleged in federal court do not fundamentally alter the nature of the claim presented to the state

11

United States District Court

10

Cir. 1994)), place the claim in a ―significantly different and stronger evidentiary posture‖ than it

13

was when the state courts considered it, or ―substantially improve[] the evidentiary basis‖ of the

14

claim. Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988).

15

Generally, a petitioner may add factual materials supportive of those already in the record

16

without fundamentally altering his claim and rendering it unexhausted. See Vasquez, 474 U.S. at

17

260 (statistical analyses of facts already in record do not render claim unexhausted); see also

18

Chacon, 36 F.3d at 1468 (factual basis of claim that interpreter mistranslated guilty plea

19

proceedings was fairly presented where the state court understood accuracy of translation to be at

20

issue). However, where the new facts substantially improve the claim by contradicting evidence

21

the state court already considered, the new factual materials must be presented to the state court.

22

See Aiken, 841 F.2d at 883-84 & n.3 (new evidence consisting of decibel level studies of tape of

23

petitioner‘s confession, which conflicted with evidence state court had considered, substantially

24

improved evidentiary posture of claim and required exhaustion); Dickens v. Ryan, 740 F.3d 1302,

25

1317 (9th Cir. 2014) (new allegations regarding petitioner‘s fetal alcohol syndrome and organic

26

brain damage in ineffective assistance of counsel claim substantially improved evidentiary posture

27

of claim and require exhaustion).

28

Exhaustion may be excused where it would be futile. See 28 U.S.C. § 2254(b)(1);
4

1

Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998) (requiring ―extremely unusual

2

circumstances‖); Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981) (exhaustion requirement may

3

be avoided by showing that it would be futile in light of prevailing decisions of highest state

4

court). Section 2254 provides two ways around the exhaustion requirement: ―an absence of

5

available State corrective process‖ or when ―circumstances exist that render such process

6

ineffective to protect the rights of the applicant.‖ 28 U.S.C. § 2254(b)(1)(A).

7

2.

8

As a threshold issue, Petitioner argues Respondent has the burden of proving

9

nonexhaustion.2 See Docket No. 161 at 3. Respondent disagrees, arguing Petitioner has the

10

burden of showing exhaustion once Respondent raises the issue. Docket No. 263 at 1-2.
Although neither the Supreme Court nor the Ninth Circuit have explicitly ruled on the

11
12
For the Northern District of California

United States District Court

Analysis

issue, federal habeas rules, such as Local Rule 2254-28, suggest that Petitioner is responsible for

13

showing his claims are exhausted. H.R.L.R. 2254-28(b)(4) (petitioner‘s finalized petition must

14

identify where in the record each claim was exhausted). The circuits which have considered the

15

issue have held a petitioner bears the burden of showing exhaustion after the state raises the issue

16

in habeas corpus. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997), as amended (1998)

17

(habeas petitioner carries burden of proving exhaustion of all available state remedies) (citation

18

omitted), cert. denied, 532 U.S. 919, 121 S.Ct. 1353 (2001); Matthews v. Evatt, 105 F.3d 907, 911

19

(4th Cir.) (burden of proving that claim has been exhausted lies with petitioner) (citation omitted),

20

cert. denied, 522 U.S. 833 (1997); Olson v. McKune, 9 F.3d 95 (10th Cir.1993) (state prisoner

21

bringing federal habeas corpus action bears burden of showing that he has exhausted available

22

state remedies) (citation and quotation marks omitted).
The Court need not resolve the burden question, however, because even if Respondent

23
24

carried the burden of showing Petitioner‘s claims were unexhausted, Respondent would have met

25

that burden here. Respondent identified each allegedly unexhausted claim, subclaim, and

26

allegation and explained in detail the basis for his assertion that each item was unexhausted. See

27
2

28

Because the parties have stipulated that Claims 5, 6, 16, 17A, 17B, 17C, 17F, 17G, and 17H are
exhausted, the Court will not include those claims here.
5

1

Docket No. 160. Accordingly, the Court concludes respondent sufficiently raised the defense of

2

nonexhaustion and the Court may therefore rule on the exhaustion status of each of the disputed

3

claims.
a.

4

Claim 1

Petitioner argues the trial court violated his constitutional rights by failing to conduct a

5
6

hearing on his competence to stand trial in violation of his Fifth, Eighth, and Fourteenth

7

Amendment rights. See Docket No. 252, Petition for Writ of Habeas Corpus (―Fed. Pet.‖) at 61.

8

Respondent argues Claim 1 is fully unexhausted. Petitioner does not assert the claim has been

9

presented. The Court has reviewed the record and concludes that Petitioner indeed did not present

10

this claim to California Supreme Court; Claim 1 is therefore fully unexhausted.
b.

Claim 2

Petitioner argues his constitutional rights were violated by the Court‘s erroneous exclusion

12
For the Northern District of California

United States District Court

11

13

of various qualified jurors under Witherspoon v. Illinois, 391 U.S. 510, 521 (1968) and its

14

progeny. See Fed. Pet. at 75. Respondent argues Claim 2 is fully unexhausted. Petitioner does

15

not assert the claim has been presented before. The Court has reviewed the record and concludes

16

Petitioner indeed did not present this claim to the California Supreme Court; Claim 2 is fully

17

unexhausted.
c.

18

Claim 3

Petitioner argues the prosecutor‘s systematic exclusion of five black women from his jury

19
20

violated Batson v. Kentucky, 476 U.S. 79 (1986). See Fed. Pet. at 98. Respondent argues Claim 3

21

is unexhausted in part due to various subclaims containing new factual and legal allegations.

22

Petitioner asserts the claim was fairly presented during his automatic appeal. See Docket No. 261

23

at 11-14. The Court addresses each subclaim in turn.

24



In his direct appeal, Petitioner argued that the trial court‘s denial of his Batson-Wheeler

25

motions violated his right to equal protection of the laws under the Fourteenth

26

Amendment. See AG007941-89, AOB Vol. II at 140-87. Petitioner‘s finalized petition

27

now argues that the prosecutor engaged in gender discrimination by using peremptory

28

challenges on five black women, citing Batson and J.E.B. v. Alabama, 511 U.S. 127, 1286

1

29 (1994). See Fed. Pet. at 98, 124, & 148. Respondent argues the subclaim is

2

unexhausted. The Court has reviewed the record and concludes that Petitioner has not

3

previously raised a claim of gender discrimination. His Batson-Wheeler motion was based

4

on race only. Petitioner argues the subclaim is exhausted because ―Black women‖ is a

5

subset of ―Black jurors,‖ and by rejecting his Batson claim, the California Supreme Court

6

necessarily also found there was no discrimination on the basis of gender. See Docket No.

7

261 at 14. The California Supreme Court made no such findings. See People v. Stanley,

8

39 Cal.4th at 943-45 (analyzing whether prosecutor offered race-neutral explanations for

9

peremptory challenges). In order to exhaust, the petition must fairly identify the specific

separate and distinct claims requiring distinct findings. See Moormann v. Schriro, 426

12
For the Northern District of California

claims. Race and gender discrimination, though they may occur in the conjunctive, are

11

United States District Court

10

F.3d 1044, 1056 (adding new instances of ineffective assistance of counsel to habeas claim

13

constitute new legal theories and are therefore unexhausted); see also Duncan v. Henry,

14

513 U.S. 364, 366 (1995) (―mere similarity of claims is insufficient to exhaust‖); see also

15

Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044, 1051 (9th Cir. 1987) (in wrongful

16

termination action, failure to explicitly argue age and sex discrimination in EEOC

17

complaint in addition to allegation of national origin discrimination renders age and sex

18

discrimination claims unexhausted). Evidence of discrimination on the basis of gender is

19

likely to differ from that based on race – e.g., any comparative juror analysis that looks to

20

similarly situated comparators is likely to differ. As Petitioner never advanced a gender-

21

based Batson-Wheeler claim in the state court, it was not fairly presented by the race-based

22

challenge. The subclaim is unexhausted.

23



In his direct appeal, Petitioner argued that the prosecutor‘s assertion that Jurors, F., B., D,

24

(see AG007979-81, AOB Vol. II at 177-79) and S (see AG007985-86, AOB Vol. II at 183-

25

84) were sympathetic was a sham. Petitioner also argued that the prosecutor had been

26

unable to provide any reason as to why he thought Juror S. had sympathy for the defendant

27

before the trial court suggested ―body language‖ as a reason; finally, Petitioner argued that

28

the trial court‘s comment to the prosecution that it ―didn‘t detect anything in [Juror S.‘s]
7

shows that the trial court was unable to verify the prosecutor‘s rationale through its own

3

personal observation. See AG007979-86, AOB Vol II, at 177-84. In his finalized Petition,

4

Petitioner now argues that the prosecutor merely picked up on the trial court‘s reasoning

5

that ―sympathy for the defendant‖ would be a legitimate reason to use peremptory

6

challenges on Jurors F., B., and D., and that under Ninth Circuit law, the prosecution‘s

7

adoption of the Court‘s proffered language prevents the Court from meaningfully assessing

8

the veracity of the prosecutor‘s reasons for exercising a challenge. See Fed. Pet. at 113-14.

9

Respondent argues that Petitioner never argued that the prosecution adopted the trial

10

court‘s suggested rationale as to Jurors F., B., or D., and that the subclaim is therefore

11

unexhausted. The Court has reviewed the record and concludes that Respondent is correct.

12
For the Northern District of California

answers that would lead [the trial court to believe] she was sympathetic [to Petitioner]‖

2

United States District Court

1

Insofar as Petitioner now incorporates Jurors F., B., and D. into his argument that the trial

13

court failed to scrutinize the veracity of the prosecutor‘s proffered race-neutral reason for

14

striking Juror S., Petitioner now presents new legal theories that have not been fairly

15

presented to the California Supreme Court. See Moormann v. Schriro, 426 F.3d at 1056

16

(adding new instances of ineffective assistance of counsel to habeas claim constitute new

17

legal theories and are therefore unexhausted); see also AG007977-81, AOB Vol II, at 177-

18

80. This argument, if accepted, would substantially strengthen the evidentiary basis of

19

Petitioner‘s Batson claim. The subclaim is unexhausted.

20



During oral argument for his direct appeal, Petitioner‘s counsel stated that Juror N.

21

―express[ed] concern that serving as a juror in [Petitioner‘s] trial would conflict with a

22

convention in Palm Springs she planned on attending,‖ see Motion to Dismiss at 16. In the

23

briefing for his direct appeal, Petitioner also argued that ―the prosecutor‘s Palm Springs

24

convention rationale bears closer scrutiny. . . [If the prosecutor] was concerned that [Juror

25

N.]‘s time conflict would render her an inattentive juror, why did he not ask that she be

26

excused for cause.‖ See AG007959, AG007971-72, AOB Vol. II at 169-70. In his

27

finalized petition, Petitioner now asserts that Juror N. ―never said during her voir dire she

28

‗didn‘t want to be here because she had a convention in Palm Springs.‘ ‖ See Fed. Pet. at
8

1

110. Respondent argues that this allegation is unexhausted because Petitioner allegedly

2

conceded, during oral argument for his direct appeal, that Juror N. in fact did not want to

3

serve on Petitioner‘s jury as a result of the convention in Palm Springs. See Motion to

4

Dismiss at 16. The Court has reviewed the record and concludes the allegation in the

5

finalized petition was fairly presented to the California Supreme Court: Petitioner now

6

relies on the same portion of the factual record pointed out to the California Supreme

7

Court, and the purported concession by appellate counsel is consistent with and similar to

8

Petitioner‘s characterization of the evidence in his finalized petition. The allegation is

9

fully exhausted.


10

Respondent argues that Petitioner has not exhausted the following subclaims in his
finalized petition: the California Supreme Court relied on false statements made by the

12
For the Northern District of California

United States District Court

11

prosecutor to the trial court, i.e., that the prosecutor wrote ―sympathy for the defendant‖ in

13

his voir dire notes for each of the contested jurors, and the Attorney General knowingly

14

perpetuated those false statements before the California Supreme Court. See Fed. Pet. at

15

99, 111-12, 110-223, 130. In this petition, Petitioner presented new allegations; e.g., that

16

there are notes in the prosecutor‘s file pertaining to the black jurors in which the prosecutor

17

wrote ―Black,‖ ―BLACK,‖ or ―Dark‖ for each black juror. See Fed. Pet. at 119-123. The

18

Court has reviewed the record and concludes that Petitioner has not presented these new

19

and significant allegations to the California Supreme Court; these allegations substantially

20

improve the evidentiary posture of Petitioner‘s challenge to the credibility of the

21

prosecutor in Claim 3.
Petitioner nevertheless argues that this subclaim is exhausted because the new

22
23

evidence goes to whether the California Supreme Court made an unreasonable

24

determination of the facts, and that under McDaniels v. Kirkland, 813 F.3d 770 (9th Cir.

25

2015), this Court may consider the evidence despite the fact that it was not presented to the

26

California Supreme Court.3 See Docket No. 261 at 12-13. Petitioner‘s reliance on

27
3

28

Petitioner makes various arguments as to Claim 3, including that he is entitled to equitable
estoppel and the arguments related to his renewed Motion for Default Sanctions. See Docket Nos.
9

analysis, where the evidence at issue was part of the trial, appellate, or post-conviction

3

record. Id. at 780-81. Here, Petitioner references documents that were part of the

4

prosecutor‘s file, but not the trial court record; the new facts have therefore not been

5

presented to any state court. Moreover, even if the new factual allegations were intended

6

to show whether the state court made an unreasonable determination of the facts, Petitioner

7

must nevertheless exhaust them by presenting them to the state court because they

8

significantly improve the evidentiary posture of his Batson claim. See Aiken v. Spalding,

9

841 F.2d at 883; 28 U.S.C. § 2254(d)(2) (―[a]n application for a writ of habeas corpus . . .

10

shall not be granted with respect to any claim that was adjudicated on the merits in State

11

court proceedings unless the adjudication of the claim . . . resulted in a decision that was

12
For the Northern District of California

McDaniels is misplaced. McDaniels applied only in the context of comparative juror

2

United States District Court

1

based on an unreasonable determination of the facts in light of the evidence presented in

13

the State court proceeding‖) (emphasis added); Cullen v. Pinholster, 131 S.Ct. at 1400, n.

14

7 (recognizing that review under § 2254(d)(2) is ―plainly limited to the state-court

15

record‖). These subclaims are therefore fully unexhausted.

16



Respondent argues that Petitioner failed to exhaust the following subclaim in his finalized

17

petition: comparative juror analysis (the comparison of the venirepersons struck and those

18

empaneled) supports Petitioner‘s Batson claim. See Fed. Pet. at 132-48. Petitioner

19

concedes that he did not previously present this subclaim to the California Supreme Court,

20

but argues this subclaim is exhausted because the ―new‖ evidence was part of the trial

21

court record. McDaniels v. Kirkland, 813 F.3d 770; see Docket No. 261 at 13. Petitioner

22

is correct. The subclaim consists of analysis of evidence already in the trial court record

23

and Petitioner‘s Batson claim alerted the California Supreme Court that the disparate

24

treatment of the prospective jurors was at issue. The subclaim is therefore fully exhausted.

25

See McDaniels, 813 F.3d 770 (consideration of voir dire and juror questionnaires during

26

federal habeas proceedings was proper even if those items were not presented to appellate

27
28

261, 228, & 274. The Court will address each of Petitioner‘s additional arguments in other
sections of this order.
10

1

court because they were part of the state court record); see also Vasquez, 474 U.S. at 260

2

(federal habeas petitioner may apply statistical analysis to facts or information contained in

3

a state record without rendering a claim unexhausted).


4

Respondent argues Petitioner failed to exhaust the following subclaim in his finalized

Fourteenth Amendments, the International Convention of the Elimination of All Forms of

7

Racial discrimination, international customary law to equal protection, and general

8

principles of fairness and due process.4 See Fed. Pet. 98-99. The Court has reviewed the

9

record and concludes that Petitioner did not previously cite to these legal theories, other

10

than the Fourteenth Amendment‘s equal protection clause, in his Batson claim on direct

11

appeal (see AG007941-89, AOB Vol. II at 140-87). As Petitioner did not alert the

12
For the Northern District of California

petition: the prosecutor‘s peremptory challenges violate the First, Fifth, Sixth, Eighth, an

6

United States District Court

5

California Supreme Court to these additional legal theories, the subclaim has not been

13

fairly presented and is partially unexhausted. See Picard, 404 U.S. at 278 (claim that

14

failure to use grand jury to indict defendant violated Fourteenth Amendment equal

15

protection clause not exhausted when state habeas petition cited only Fifth Amendment

16

due process as basis for federal violation); id. at 277-78 (petitioner must present state

17

courts with same claim he urges upon the federal courts).


18

Respondent argues that the following allegation is unexhausted: the Alameda County

19

District Attorney‘s Office, including the prosecutor in Petitioner‘s case, had a pattern of

20

excusing ―black jurors, particularly black women‖ (Fed. Pet. at 132) at the time of

21

Petitioner‘s trial. The Court has reviewed the record and concludes Petitioner did not

22

present this allegation to the California Supreme Court. Petitioner presented no evidence

23
24
25
26
27
28

4

Petitioner lists the following general principles of fairness: the rights ―to be tried before a fair
and impartial tribunal and a fair and impartial jury; to due process; to judicial proceedings free of
racial, gender, religious, and ethnic animus; to confrontation of witnesses; to compulsory process;
to notice of the evidence against him; ... to the presumption of innocence; and to fair, accurate and
reliable guilt, death-eligibility, and penalty determinations free from unconstitutionally
impermissible risk that consideration of race, gender, ethnicity, and religion, influenced the
outcome of the prosecutor‘s purposeful, invidious discrimination and racial, gender, ethnic, and
religious animus in his use of peremptory challenges to remove... African American women from
[Petitioner‘s] jury.‖
11

1

of a pattern of conduct by the District Attorney. Because the new allegation substantially

2

improves the evidentiary posture of Petitioner‘s Batson claim, this subclaim is fully

3

unexhausted.

4



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

5

unexhausted: the California Supreme Court has systematically denied virtually every

6

Batson claim it has ever addressed and regularly violates clearly established federal law

7

and regularly makes an unreasonable determination of the facts in Batson claims. This

8

subclaim was never presented to the California Supreme Court. The subclaim is therefore

9

fully unexhausted.
Based on the aforementioned, Claim 3 is partially unexhausted.

10

d.

Claim 4

Petitioner argues the prosecution violated his Fifth, Sixth, Eighth, and Fourteenth

12
For the Northern District of California

United States District Court

11

13

Amendment rights by failing to disclose various pieces of exculpatory and impeachment evidence

14

and failing to correct false testimony. See Fed. Pet. at 149. Respondent argues Claim 4 is

15

unexhausted in part due to various subclaims containing new factual and legal allegations;

16

Petitioner asserts he exhausted the claim on direct appeal. The Court addresses each subclaim in

17

turn.

18



In his state habeas petition, Petitioner alleged that the prosecutor committed a Brady

19

violation when he failed to turn over a CYA report. The CYA report, which was not

20

turned over to Petitioner during trial, contained two arguably-favorable psychological

21

reports diagnosing Petitioner with Cyclothymic Disorder. The state habeas petition also

22

cites/included a portion of the trial transcript in which Petitioner‘s counsel, Walter

23

Cannady, tells the trial court that he received a certified letter from the CYA stating that

24

they did not have a copy of Petitioner‘s CYA report; the CYA. See AG009676-77, State

25

Pet. at fn. 12, 97-98 (―Mr. Stanley‘s trial attorney reminded the court that Mr. Landswich

26

[prosecutor] had never produced defendant‘s CYA records‖); see also AG009993, State

27

Pet. Exh. W (trial transcript excerpt containing Cannady‘s conversation with the trial

28

court). In his finalized petition, Petitioner now includes the CYA‘s certified letter to trial
12

1

counsel as support for Petitioner‘s claim that trial counsel tried, but was unable, to obtain a

2

copy of the CYA report. See Fed. Pet. at 159. Respondent argues that Petitioner‘s

3

inclusion of the CYA letter addressed to Cannady constitutes new evidence and is

4

therefore unexhausted. The Court has reviewed the record and concludes that Petitioner

5

fairly presented this subclaim. Cannady referred to the letter and its contents in a colloquy

6

with the trial court and Petitioner cited to the conversation with the court about the lack of

7

CYA records in his state habeas petition. Because the contents of the actual letter were

8

already in the record, the inclusion of a copy of the letter in the federal habeas petition does

9

not significantly alter the claim presented to the California Supreme Court. The subclaim
is fully exhausted.

10



In his state habeas petition, Petitioner asked the California Supreme Court to take judicial

12
For the Northern District of California

United States District Court

11

notice of the record in a mandamus action5 and introduced Landswick‘s declaration stating

13

that all Brady discovery had been turned over. See, e.g., AG009593-94, State. Pet. at 14-

14

15, AG009891-92, Exh. R (Decl. of Theodore T. Landswick) at 1-2. Petitioner also argued

15

in his state habeas petition that Landswick‘s declaration (referenced above) was ―untrue‖

16

because the Alameda County District Attorney‘s office had not turned over the CYA

17

report. See AG009593, State Pet. at 14. In his finalized petition, Petitioner now alleges—

18

in support of his Brady claim—that because Petitioner‘s writ of mandamus sought all

19

possible exculpatory evidence/all deals involving prosecution witnesses, and Landswick‘s

20

declaration stated that all Brady documents and discovery had already been turned over,

21

the newly discovered evidence shows that Landswick‘s declaration was false. The

22

finalized petition also alleges that Petitioner was unable to pursue additional Brady

23

discovery in state court after his mandamus claim was rejected (citing Gonzalez v. Wong,

24

667 F.3d 965, 978 (9th Cir. 2001)). See Fed. Pet. at 151-52.
Respondent argues that Petitioner‘s allegations related to the writ of mandamus,

25

including Petitioner‘s assertion that the denial of the writ made it impossible for Petitioner

26
27
5

28

Petitioner‘s mandamus action sought to obtain various pieces of exculpatory evidence from the
Alameda County District Attorney‘s Office.
13

allegations and legal bases for habeas relief. The Court has reviewed the record and

3

concludes that Petitioner fairly presented the factual allegations regarding his mandamus

4

case when he asked the California Supreme Court to take judicial notice of the record in

5

the mandamus action and introduced Landswick‘s declaration in asserting he was unable to

6

obtain exculpatory records. As to the new legal citation, Petitioner cites Gonzalez v. Wong

7

for the proposition that he was not able to pursue further state remedies after denial of his

8

writ of mandate; but this does not introduce any other federal grounds for relief and

9

therefore does not fundamentally alter or substantially improve the evidentiary posture of

10

the claim presented before the California Supreme Court. See Picard, 404 U.S. at 277-78

11

(petitioner must present state courts with same claim he urges upon federal courts). The

12
For the Northern District of California

to pursue additional Brady discovery, are unexhausted because they constitute new factual

2

United States District Court

1

subclaim is fully exhausted.

13



In his state habeas petition, Petitioner argued that the prosecutor violated Brady when he

14

described Petitioner as ―a person who has no soul,‖ ―no remorse,‖ and as ―cold-blooded‖

15

were deceptive, improper, and unfair because the prosecution was aware that Petitioner had

16

been diagnosed by Dr. Robinson (in the CYA report) with Cyclothymic Disorder and

17

Petitioner‘s criminal behavior was rooted in his mental illness. See AG00009681-84, State

18

Pet., at 102-05. In his finalized petition, Petitioner now argues that the prosecutor violated

19

Brady when he argued to the jury that CYA therapists found Petitioner lacked remorse and

20

ignored CYA efforts for rehabilitation, an argument Petitioner states is ―at odds‖ with the

21

CYA report. See Fed. Pet. at 160. The Court has reviewed the record and concludes that

22

Petitioner exhausted this allegation by raising it in a substantially similar fashion in his

23

state habeas petition. The allegation is fully exhausted.

24



In his state habeas petition, Petitioner argued, in the context of his Brady claim, that had

25

Drs. Pierce and Benson been able to review the CYA report, they would have testified in a

26

way that could have ―supported a potentially successful defense that [P]etitioner was

27

legally insane at the time of the homicide and the other charged offenses.‖ See AG009677,

28

State Pet. at 98. Petitioner also argued in his state habeas petition that had they had the
14

1

CYA report, Drs. Pierce and Benson could have testified that Petitioner suffered from

2

Bipolar Disorder, Manic Type, or Mood Disorder, making it probable that Petitioner would

3

not have been sentenced to death. Id. In his finalized petition, Petitioner now argues that

4

the CYA report could have provided the basis for a guilt phase defense of imperfect self-

5

defense, as well as mitigation for the penalty phase under Penal Code section 190.3(a)

6

(circumstances of crime), 190.3(d) (influence of extreme mental or emotional distress),

7

190.3(h) (impaired capacity to appreciate or conform his conduct to the requirements of

8

law due to mental disease or defect, or the effects of intoxication), and 190.3(k) (any other

9

extenuating circumstance). See Fed. Pet. at 162.
Respondent argues that Petitioner‘s subclaims are unexhausted because they

10

constitute new legal theories that fundamentally alter the claim decided by the California

12
For the Northern District of California

United States District Court

11

Supreme Court. The Court has reviewed the record and concludes that although Petitioner

13

never argued before the California Supreme Court that the prosecutor‘s failure to turn over

14

the CYA report prevented him from claiming imperfect self-defense or present mitigation

15

under Penal Code section 190.3(a), Petitioner nevertheless fairly presented the claim by

16

providing the operative facts and citing the applicable federal basis of his subclaim through

17

his citations to Brady and by arguing that failure to provide the CYA report impaired his

18

ability to mount a defense related to his mental illness at both the guilt and penalty phases

19

of trial. See AG009675-77, State Pet. at 96-98 (citing Brady and the Fifth, Sixth, Eighth,

20

and Fourteenth Amendments). This subclaim is fully exhausted. See AG009661 &

21

AG009677, State Pet. at 82 & 98.

22



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

23

unexhausted: the trial court‘s order requiring the Alameda County District Attorney‘s

24

Office and the Oakland Police Department to use ―reasonable means‖ to preserve specified

25

evidence offered at trial and reports/notes related to the case was inadequate and

26

insufficient to preserve evidence related to Petitioner‘s claims (such as information

27

regarding cases built against Issac Stanley, who testified against Petitioner during trial)

28

because it was limited to preservation of evidence in Petitioner‘s case only. See Fed. Pet.
15

1

at 152. The Court has reviewed the record and concludes the subclaim was never

2

presented to the California Supreme Court. Because the destruction of evidence resulting

3

from an ineffective preservation order may substantially improve the evidentiary posture of

4

Petitioner‘s argument that he was prejudiced by the prosecutor‘s alleged Brady claims, the

5

allegation is fully unexhausted.


6

Respondent argues that the following allegations are unexhausted: the prosecutor withheld

7

the identity of the evaluators (Dr. Robinson and Dr. Nicholas) who created Petitioner‘s

8

CYA report; had Dr. Nicholas been called to testify at trial, he would have testified that

9

Petitioner‘s symptoms suggested mental illness, poor contact with reality, attention

concludes that Petitioner did not present these allegations to the California Supreme Court.

12
For the Northern District of California

deficits, grandiose delusions, and thought disturbance. See Fed. Pet. at 160-61. The Court

11

United States District Court

10

Although Petitioner‘s allegation that the prosecutor withheld the identity of the evaluators

13

itself does not fundamentally alter Petitioner‘s claim on state habeas because it falls into

14

Petitioner‘s general claim that the prosecution failed to turn over the CYA report

15

containing the evaluators‘ names, Petitioner‘s argument that Dr. Nicholas would have

16

testified that Petitioner‘s symptoms suggested mental illness, poor contact with reality,

17

attention deficits, grandiose delusions, and thought disturbance had he been called to

18

testify at Petitioner‘s trial constitutes new evidence that would significantly bolster the

19

evidentiary posture of Petitioner‘s Brady claim; it is therefore partially unexhausted.6


20

Respondent argues the following subclaims in Petitioner‘s finalized petition are

21

unexhausted: the prosecutor committed Brady/Napue violations when he failed to turn over

22

exculpatory evidence related to Issac Stanley and criminalist Alan Keel. See Fed. Pet. at

23

164-65. Specifically, Petitioner argues that the prosecution failed to disclose that

24

Landswick dismissed five 1990 felony charges against Issac Stanley and offered

25

misdemeanor pleas for time served in exchange for Issac Stanley‘s testimony against

26
27
28

6

The Court could not locate a filed copy of the cited declaration by Dr. Nicholas, but Petitioner‘s
counsel previously stated in a declaration that Dr. Nicholas did not retain any records or have any
recollection of Petitioner. See Docket No. 87, Exh. 2 at 1.
16

1

Petitioner at trial. See Fed. Pet. at 166. Petitioner also argued that the prosecution failed to

2

disclose that Keel was suspended from some of his regular duties at the Oakland Police

3

Department crime lab during 1990 for making errors in his blood analysis. See Fed. Pet. at

4

164.
As a threshold matter, the Court concludes that the allegations related to Issac

5
6

Stanley and Alan Keel fundamentally alter Petitioner‘s previous Brady claim because they

7

would substantially improve the evidentiary posture of his argument that the state‘s Brady

8

violations deprived him of a fair trial. Petitioner does not dispute that he has not presented

9

the allegations to the California Supreme Court, but argues, citing Banks v. Dretke, 540

state‘s failure to turn over the material evidence relating to Isaac Stanley and Alan Keel

12
For the Northern District of California

U.S. 668, 691 (2004), that the Court should excuse the exhaustion requirement due to the

11

United States District Court

10

until after Petitioner initiated his federal habeas proceedings. See Docket No. 261 at 7.
Banks is inapposite. Banks was decided under the pre-AEDPA federal habeas

13
14

scheme and nevertheless held that the petitioner, Banks, had already exhausted the legal

15

basis for his claim in state court by arguing that the prosecution failed to turn over

16

exculpatory evidence related to an informant named Farr. Banks, 540 U.S. at 690. Under

17

the pre-AEDPA scheme, a petitioner could supplement the factual basis of a claim through

18

an evidentiary hearing if he could show cause for his failure to develop the facts in state

19

court and actual prejudice resulting from that failure.7 See Banks, 540 U.S. at 690-91. The

20

pre-AEDPA federal district court, which was not subject to section 2254(d)(2)‘s directive

21

that review of factual determinations must be based on the evidence presented in state

22

court, could consider the new evidence in granting or denying the petition for writ of

23

habeas corpus without requiring the petitioner to return to state court to present the new

24
25
26
27
28

7

Some situations covered in the statute included: when a factual dispute was not resolved; when
the state‘s factual determination was not supported by the record; when the state‘s fact-finding
procedure was inadequate; when there was substantial new evidence; when the material facts were
not developed at the state court hearing; or when, for any reason, it appeared that the state trier of
fact did not afford the petitioner a full and fair hearing on a factual issue. See Keaney v. TamayoReyes, 504 U.S. 1, 17 (1992) (O‘Connor, J., dissenting) (citing Townsend v. Sain, 372 U.S. 293
(1963)).
17

1

facts. Accordingly, in Banks, when the petitioner showed cause and prejudice as a result of

2

the prosecution‘s suppression of impeaching evidence related to Farr, the Supreme Court

3

was able to grant him relief without requiring additional exhaustion proceedings. See id. at

4

703.

5

Under AEDPA, however, the Supreme Court has unequivocally stated that a

6

district court is ―plainly limited to [reviewing § 2254 claims based on] the state-court

7

record,‖ and petitioners must therefore exhaust substantial new factual allegations unless

8

they meet an exception under § 2254(b), such as when there is an absence of state

9

corrective process or circumstances exist that render process ineffective. Cullen v.

not applicable to AEDPA cases in the context of exhaustion. Here, Petitioner does not

12
For the Northern District of California

Pinholster, 131 S.Ct. at 1400, n. 7. The cause and prejudice analysis in Banks is simply

11

United States District Court

10

dispute that AEDPA applies and concedes he has not previously presented the legal or

13

factual basis for the Issac Stanley and Alan Keel Brady subclaims in state court.

14

Petitioner also argues that the Court should excuse the exhaustion requirement

15

because he can show cause and prejudice for any procedural default. Petitioner appears to

16

conflate the concepts of procedural default and exhaustion, which are related, but

17

ultimately different, inquiries. On one hand, the exhaustion doctrine requires a petitioner

18

to exhaust any available state remedies. 28 U.S.C. § 2254(b). On the other, procedural

19

default places constraints the district court‘s ability to consider the merits of a claim.

20

Sawyer v. Whitley, 505 U.S. 333, 338 (1992). Accordingly, a showing of cause and

21

prejudice for procedural default has no direct bearing on exhaustion; it is relevant only to

22

whether a federal court may reach the merits of a procedurally-defaulted claim. See

23

Sawyer v. Whitley, 505 U.S. 333, 338 (1992). Moreover, while procedural default

24

sometimes overlaps with the exhaustion doctrine in that procedural default can effectively

25

foreclose a petitioner‘s access to state remedies, the overlap ends there; a district court will

26

not excuse exhaustion if a petitioner still has a state remedy available. See Coleman v.

27

Thompson, 501 U.S. at 731-32 (petitioner who has procedural defaulted his federal claims

28

meets technical requirements for exhaustion when state remedies are no longer available to
18

1

him); see also 28 U.S.C. § 2254(c) (petitioner has not ―exhausted the remedies available in

2

the courts of the State . . . if he has a right under the law of the State to raise, by any

3

available procedure, the question presented‖).
Here, Petitioner has failed to show that his claim would be procedurally defaulted if

4

based on any of section 2254(b)‘s provisions. On the contrary, Petitioner‘s argument that

7

the nonexhaustion was caused by the state‘s suppression of evidence can presumably be

8

made before the California Supreme Court to cure any procedural default. See In re Clark,

9

5 Cal. 4th 750, 775 (1993) (―where the factual basis for a claim was unknown to the

10

petitioner and he had no reason to believe that the claim might be made, or where the

11

petitioner was unable to present his claim, the court will . . . consider the merits of the

12
For the Northern District of California

sent back to state court for exhaustion proceedings or that exhaustion should be excused

6

United States District Court

5

claim if it is asserted as promptly as reasonably possible).
Petitioner has failed to cite any relevant authority showing the exhaustion

13
14

requirement should be excused for these subclaims. The subclaims are fully unexhausted.

15

Based on the aforementioned, Claim 4 is partially unexhausted.
e.

16

Claim 7

17

Petitioner argues that he was denied effective assistance of counsel because trial counsel

18

failed to assert he was incompetent to stand trial. See Fed. Pet. at 238. Petitioner concedes that

19

the claim is unexhausted. See id. at 239. Claim 7 was never presented to the California Supreme

20

Court. It is therefore fully unexhausted.8
f.

21

Claim 8

22

Petitioner argues that counsel was ineffective at the guilt phase of trial by failing to

23

conduct an adequate investigation into Petitioner‘s family/personal history and failing to enter an

24

insanity plea. See Fed. Pet. at 245. Respondent argues that Claim 8 is unexhausted in part due to

25
26
27
28

8

In his finalized petition, Petitioner alleges several pages of facts under the subheading ―omnibus
facts in support of ineffective assistance of counsel claims,‖ (―Omnibus Facts‖) which are
incorporated by reference in claims 7, 8, and 9. Respondent asserts the Omnibus Facts are
unexhausted. As Claim 7 is already fully unexhausted, the Court will consider the Omnibus Facts
in the next section.
19

1

various subclaims containing new factual and legal allegations. Petitioner asserts the claim was

2

exhausted in his state habeas proceedings. See Fed. Pet. at 245; Docket No. 261 at 15. The Court

3

addresses each subclaim in turn.

4



In his finalized petition, Petitioner alleges several pages of Omnibus Facts, which are

the Omnibus Facts are unexhausted because they include new allegations related to

7

Petitioner‘s trial counsel and trial team. In summary, the Omnibus Facts include:

8

allegations regarding the appointment and succession line of Petitioner‘s trial attorneys,

9

including Lincoln Mintz, Walter Cannady, Richard Humphrey, and Richard Hove, as well

10

as some of their funding requests, correspondence, and disciplinary history. The Omnibus

11

Facts also include billing histories and other correspondence to/from defense investigator

12
For the Northern District of California

incorporated by reference in claims 7, 8, and 9 (see ante, fn. 8). Respondent argues that

6

United States District Court

5

Brian Olivier and Drs. William Pierce and Samuel Benson; summaries of the testimonies

13

of several defense witnesses; allegations regarding Petitioner‘s mental illness and

14

medical/mental health history both prior to and after his conviction; Petitioner‘s family

15

history; Petitioner‘s criminal history; Petitioner‘s CYA history; contents of the CYA

16

report; reports of Petitioner‘s drug use and personality; reports regarding various incidents

17

Petitioner was involved in while incarcerated awaiting trial for this case; and a reference to

18

an order by this Court holding that Petitioner. See Fed. Pet. at 180-237. The Court has

19

reviewed the record and concludes that Petitioner failed to present many of the allegations

20

in the Omnibus Facts to the California Supreme Court. For example, Petitioner has never

21

presented his trial counsel‘s billing histories showing the small number of hours they spent

22

on investigation or negative disciplinary history showing Mintz was disbarred after a ―long

23

pattern‖ of incompetence and that Hove, co-counsel at Petitioner‘s trial, was also disbarred

24

in 2008. See Fed. Pet. at 182-88, 211. Petitioner did not present letters from attorney

25

Humphrey (who left Petitioner‘s defense team shortly before the start of trial), expressing

26

concern that penalty phase defense work had yet to be started and seeking to take on the

27

responsibility of conducting investigation on Petitioner‘s drug dependency and

28

psychological make-up. See Fed. Pet. at 191. Petitioner never introduced evidence that
20

1

Cannady and the rest of the defense team did not begin penalty phase investigation until a

2

week after the guilt phase of trial began. See Fed. Pet. at 211. Petitioner also never

3

presented evidence that Cannady misrepresented the amount of funds he intended to use

4

for penalty phase investigation, causing him to run out of money before conducting the

5

minimum amount of hours dedicated to penalty phase investigation recommended by Drs.

6

Benson and Pierce, as well as Olivier, before trial. See Fed. Pet. at 191-213. If proven,

7

these facts would support Petitioner‘s ineffective assistance of counsel claims by showing

8

that his defense team failed to do what was necessary to ensure that it investigated

9

Petitioner‘s mental health and overall background, and would certainly be relevant in

See Strickland v. Washington, 466 U.S. 668 (defendant is entitled to effective assistance of

12
For the Northern District of California

determining whether any of these failures were due to incompetence or strategic in nature.

11

United States District Court

10

counsel); Wiggins v. Smith, 539 U.S. 510 (2003) (counsel has duty to perform reasonable

13

investigation); Williams v. Taylor, 529 U.S. 362 (2000) (counsel must conduct

14

investigation into defendant‘s background for penalty phase of trial). Accordingly, as

15

Petitioner‘s new factual allegations would substantially improve the evidentiary posture of

16

Petitioner‘s ineffective assistance of counsel claims, the new factual allegations in the

17

Omnibus Facts must be exhausted. 9


18

In his state habeas petition, Petitioner argued that trial counsel‘s failure to adequately

19

investigate Petitioner‘s family/personal history, and failure to provide psychiatric experts

20

and jurors with critical information about Petitioner‘s mental illness, violated Petitioner‘s

21

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the federal

22

constitution, including his right to effective assistance of counsel. See AG009650-63,

23

State Pet. Vol. I at 71-84. In his finalized petition, Petitioner now argues that his

24

confinement and sentence are illegal, unconstitutional, and void under the Fifth, Sixth, and

25

Fourteenth Amendments to the U.S. Constitution, his rights to due process, equal

26

protection, assistance of counsel, a fair trial, and a reliable determination of guilt, because

27
9

28

Insofar as the Omnibus Facts are incorporated by reference into Claims 7 and 9, they are also
unexhausted as to those claims.
21

1

defense counsel failed to adequately investigate, prepare, and present a defense (citing

2

Strickland v. Washington, 466 U.S. 668). See Fed. Pet. at 245. Respondent argues that the

3

subclaim is partially unexhausted because Petitioner never argued his right to equal

4

protection under any constitutional amendment was violated by ineffective assistance of

5

counsel at the guilt phase. The Court has reviewed the record and concludes Respondent is

6

correct. Petitioner now presents a new federal legal ground for relief; the subclaim is

7

unexhausted. See Picard, 404 U.S. at 278 (claim that failure to use grand jury to indict

8

defendant violated Fourteenth Amendment equal protection clause not exhausted when

9

state habeas petition cited only Fifth Amendment due process as basis for federal
violation); id. at 277-78 (petitioner must present state courts with same claim he urges

11

upon the federal courts).

12
For the Northern District of California

United States District Court

10



In his finalized petition, Petitioner alleges that his counsel, ―collectively and singularly,‖

13

provided assistance that was constitutionally deficient and that counsel‘s deficient

14

representation severely prejudiced Petitioner and ―collectively and singularly‖ failed to

15

adequately investigate and present an insanity defense at the guilt phase of trial. Petitioner

16

also argues that counsel‘s failure to provide constitutionally adequate representation

17

deprived him of the presentation of a defense that would have resulted in a verdict of not

18

guilty by reason of insanity. See Fed. Pet. at 246. The Court has reviewed the record and

19

concludes that Petitioner‘s argument is essentially an assertion of cumulative error.

20

Petitioner had not previously made any allegations regarding appointed counsel other than

21

Cannady; accordingly, insofar as the claim of cumulative error relies on Petitioner‘s

22

unexhausted Omnibus Facts (see ante, at 20-21), the subclaim is unexhausted.

23



In his state habeas petition, Petitioner argued that trial counsel was ineffective in failing to

24

be aware of and raise a potentially successful insanity defense on Petitioner‘s behalf. See

25

AG0099724, State Pet. at 145. In his finalized petition, Petitioner now argues that trial

26

counsel could have argued that Petitioner was not the person who stabbed Rubaclava, as he

27

did so in trial, and then also present a defense that Petitioner was insane without prejudice

28

to Petitioner‘s case if the jury rejected the first defense. Petitioner also argues that counsel
22

1

knew the jury would reject the defense that Petitioner was not the person who stabbed

2

Rubaclava. See Fed. Pet. at 247.
Respondent argues that the subclaim is unexhausted because it includes new facts

3
4

and legal arguments. The Court has reviewed the record and concludes that Petitioner

5

never alleged that California law allowed Petitioner to present both the identification and

6

insanity defenses, nor did he allege that Cannady knew the jury would reject the

7

identification defense. However, the new allegations do not raise any alternate federal

8

grounds for relief or fundamentally alter Petitioner‘s claim that counsel was ineffective in

9

failing to raise an insanity defense. Vasquez, 474 U.S. at 260 (factual basis of a claim
fairly presented as long as facts subsequently alleged in federal court do not fundamentally

11

alter nature of the claim presented to the state court). The subclaim is therefore exhausted.

12
For the Northern District of California

United States District Court

10



In his finalized petition, Petitioner makes several factual allegations related to his jail

13

medical records in support of his claim that trial counsel was ineffective in failing to

14

investigate his background and raise an insanity defense. Respondent argues that

15

Petitioner failed to exhaust the factual allegations. Petitioner‘s factual allegations for his

16

current proceedings, as well as his allegations during his state habeas, are as follow:

17

Finalized Petition

State Habeas Petition

18

Medical staff at the county jail holding

Had counsel conducted a competent

19

Petitioner began medicating Petitioner with

investigation, counsel would have

20

Mellaril/Thioridazine, an anti-psychotic

discovered the CYA report, which included

21

medication used in the treatment of

psychiatric evaluation by Dr. Robinson.

22

schizophrenia. During his incarceration, he

Dr. Robinson made a provisional diagnosis

23

was described as agitated, hostile, tired,

of Petitioner as suffering from bipolar

24

drowsy, and sleeping more than 8 hours a

disorder, manic type,‖ then revised the

25

day. Petitioner reported seeing bugs and

diagnosis to cyclothymic disorder. She

26

was described as hallucinating.

recommended lithium for mood

27

Dr. Robinson made a provisional diagnosis

stabilization. Had counsel obtained the

28

of bipolar disorder, manic type, and several

CYA report, he would have been made

23

1

other diagnoses in the CYA report. Had

aware of Drs. Robinson and Nicholas‘

2

Mintz obtained any of Petitioner‘s jail,

reports indicating Petitioner exhibited mood

3

medical, or CYA records, he would have

cycling and Cyclothymic disorder. The

4

recognized Petitioner was exhibiting

information would have allowed Drs.

5

distinctive mood cycling and other signs of

Benson and Pierce to testify in a way

6

a major affective disorder shortly after his

supporting an insanity defense and would

7

arrest; he would have discovered that a

have constituted powerful mitigating

8

meritorious insanity defense could and

evidence. Dr. Benson would have also

9

should have been presented at trial. See

testified that there was a continuum in

Fed. Pet. at 248-249.

Petitioner‘s juvenile criminal behavior and

10

his adult crimes. See AG009654-56,

12
For the Northern District of California

United States District Court

11

AG009660-61, State Pet. at 75-77;

13

AG009757-58, State Pet., Exh. A at 2-3

14

(stating that jail medical records indicate

15

that Petitioner was prescribed Mellaril, a

16

tranquilizer used to treat psychosis).

17

The Court has reviewed the record and concludes that Petitioner presented allegations

18

regarding the jail records and the CDC‘s prescription of Mellaril to the California Supreme

19

Court during his state habeas review by citing Dr. Benson‘s declaration (see AG009757-

20

58, State Pet., Exh. A at 2-3) in his ineffective assistance of counsel claim. Moreover,

21

Petitioner previously alleged that reasonably competent counsel would have ―conducted an

22

investigation into [P]etitioner‘s mental health history and . . . past experiences with the

23

criminal/justice system.‖ See AG009655, State Pet. at 76. To the extent the subclaim

24

raises more details about the contents of the jail medical records, including that Petitioner

25

was described as agitated, hostile, tired, drowsy, was sleeping more than 8 hours a day,

26

reported seeing bugs, and was described as hallucinating, the details do not fundamentally

27

alter Petitioner‘s state habeas claim. Petitioner presented substantial operative facts to the

28

state court, i.e., that Petitioner showed signs of mental illness, which was evidenced by his
24

1

CYA report, CDC file, family history, and family/friends‘ accounts of Petitioner‘s

2

behavior. Petitioner also presented to the state court the relevant legal theory, i.e., that

3

counsel was ineffective in failing to investigate and obtain the jail, medical, or CYA

4

records and use them to mount an insanity defense or as mitigation evidence. This

5

subclaim is therefore exhausted.

6



Respondent argues that the following allegation is unexhausted: Cannady would have

7

discovered Petitioner‘s history of mental illness had he entered an insanity plea on his

8

behalf. See Fed. Pet. at 247. The Court has reviewed the record and concludes the

9

allegation is substantially similar to Petitioner‘s state habeas claim that counsel was
ineffective in failing to raise a defense of insanity. See AG009724-27, State Pet. at 145.

11

The subclaim is exhausted.

12
For the Northern District of California

United States District Court

10



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

13

unexhausted: Petitioner‘s first appointed counsel, Mintz, incompetently represented

14

Petitioner after he was appointed in February 1989 and failed to hire an investigator or

15

mental health expert or speak to Petitioner‘s family; failed to obtain any of Stanley‘s

16

records, including school, jail, juvenile, or CYA records containing crucial information

17

about Petitioner‘s mental and medical health; and then billed Alameda County for a total

18

of 24.3 hours over the course of ten months. See Fed. Pet. at 248-49. The Court has

19

reviewed the record and concludes that Petitioner has not previously presented these

20

allegations to the California Supreme Court. While Mintz played only a pretrial role in

21

Petitioner‘s trial representation, the allegations, if proven, would substantially improve the

22

evidentiary posture of Petitioner‘s argument that his appointed attorneys‘ cumulative

23

failures, including the failure to conduct adequate pretrial investigation or enter an insanity

24

plea on Petitioner‘s behalf, amounted in ineffective assistance of counsel. See Wiggins,

25

539 U.S. at 535 (failure to investigate may constitute ineffective assistance of counsel).

26

The subclaim is unexhausted.

27
28



Respondent argues that the following allegations are unexhausted: Cannady and his cocounsel Humphrey failed to obtain relevant documents and records, including Petitioner‘s
25

abandoned Petitioner two months prior to the start of his trial. See Fed. Pet. at 250. The

3

Court has reviewed the record and concludes that Petitioner has not previously presented

4

evidence regarding Humphrey‘s behavior as appointed counsel; while Humphrey played

5

only a pretrial role in Petitioner‘s trial representation, the allegations regarding

6

Humphrey‘s failure to obtain relevant documents pertaining to Petitioner‘s mental illness,

7

as well as his abandonment shortly before trial, would substantially improve the

8

evidentiary posture of Petitioner‘s claim that his appointed attorneys‘ cumulative failures,

9

including the failure to conduct adequate pretrial investigation or enter an insanity plea on

10

Petitioner‘s behalf, amounted to ineffective assistance of counsel. See Wiggins, 539 U.S.

11

at 535 (failure to investigate may constitute ineffective assistance of counsel). The

12
For the Northern District of California

CYA records and his medical/psychiatric records from the county jail, and Humphrey

2

United States District Court

1

subclaim is therefore unexhausted.

13



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

14

unexhausted: Cannady‘s representation was inadequate when he chose not to enter an

15

insanity plea even after being presented with a number of reports from Drs. Benson and

16

Pierce stating Petitioner had grandiose delusions, poor reality contact, thought disturbance,

17

and loss of memory. Petitioner also told his investigator, Olivier, that he was born in New

18

York and lived there until he entered the sixth grade, which was not true. See Fed. Pet. at

19

250. The Court has reviewed the record and concludes Petitioner never presented

20

allegations related to Olivier in the California Supreme Court; however, the allegation that

21

Petitioner said he lived in New York does not substantially alter the claim that counsel was

22

ineffective in failing to raise an insanity defense given Petitioner‘s signs of mental illness.

23

See Seidel v. Merkle, 146 F.3d 750, 755 (9th Cir. 1998) (counsel cannot ignore abundant

24

signs of mental illness); Daniels v. Woodford, 428 F.3d 1181, 1203-04 (9th Cir. 2005)

25

(counsel may not rest on a preliminary examination in deciding to abandon mental health

26

defense). The subclaim is exhausted.

27
28



Respondent argues that the following subclaim in Petitioner‘s finalized petition is
unexhausted because it includes new factual and legal allegations: Petitioner incorporates
26

1

by reference ―all previous and subsequent claims and facts alleged in‖ his federal petition

2

(Fed. Pet. at 246). Respondent is correct. To the extent Claim 8 incorporates legal

3

arguments and facts from his unexhausted claims, Claim 8 is unexhausted.

4

Based on the aforementioned, Claim 8 is partially unexhausted.
g.

5

Claim 9

Petitioner argues that he was denied effective assistance of counsel at the penalty phase of

6
7

trial by failing to investigate, prepare, and present readily available mitigating evidence on

8

Petitioner‘s behalf. See Fed. Pet. at 251. Respondent argues Claim 9 is unexhausted in part due to

9

various subclaims containing new factual and legal allegations. Petitioner asserts the claim was
exhausted in his state habeas proceedings. See Fed. Pet. at 251. The Court addresses each

11

subclaim in turn.

12
For the Northern District of California

United States District Court

10



In his state habeas petition, trial counsel‘s failure to adequately investigate Petitioner‘s

13

family/personal history, including Petitioner‘s CYA records, and failure to provide

14

psychiatric experts and jurors with critical information about Petitioner‘s mental illness

15

violated Petitioner‘s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of

16

the federal constitution. See AG009650-63, State Pet. Vol. I at 71-84. In his finalized

17

petition, Petitioner now argues he was denied the effective assistance of counsel at the

18

penalty phase of trial; and that his confinement and sentence are illegal, unconstitutional,

19

and void pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S.

20

Constitution, his rights to due process, equal protection, assistance of counsel, a fair trial,

21

and a reliable determination of guilt (citing Strickland v. Washington). See Fed. Pet. at

22

251. Respondent argues that the subclaim is unexhausted because it includes a new legal

23

theory. The Court has reviewed the record and concludes that Petitioner did not cite the

24

Fourteenth Amendment‘s equal protection clause or otherwise provide notice to the

25

California Supreme Court that his right to equal protection under any constitutional

26

amendment was violated by ineffective assistance of counsel at the penalty phase of trial.

27

As Petitioner‘s new constitutional argument was never fairly presented in state court, the

28

subclaim is partially unexhausted. See Picard, 404 U.S. at 277-78 (petitioner must present
27

1

state courts with same claim he urges upon the federal courts); see also Castillo v.

2

McFadden, 399 F.3d at 1002 (petitioner did not give state appellate court fair opportunity

3

to rule on federal due process claim by concluding his brief with ―scattershot citation of

4

federal constitutional provisions‖ with no articulated federal legal theory).

5



In his finalized petition, Petitioner cites various cases in support of his claim that trial

6

counsel had a duty to investigate Petitioner‘s background. Respondent argues that

7

Petitioner has not exhausted the subclaim because Petitioner‘s citations introduce new

8

legal theories fundamentally altering the claim presented to the California Supreme Court.

9

Petitioner‘s federal and state habeas petition subclaims are set forth below:
State Habeas Petition

Petitioner cites the following cases to

Petitioner cited the following cases to

12
For the Northern District of California

Federal Petition

11

United States District Court

10

support his allegations of ineffective

support his allegations of ineffective

13

assistance of counsel: Wiggins v. Smith, 539

assistance of counsel: Strickland v.

14

U.S. 510, 522 (2003) (counsel must

Washington, 266 U.S. at 668-89; Williams

15

investigate defendant‘s background); Caro

v. Taylor, 529 U.S. 362, 393-99 (2000)

16

v. Calderon, 165 F.3d 1223, 126-27 (all

(counsel must conduct adequate

17

relevant mitigation must be unearthed for

investigation into defendant‘s life for

18

penalty phase of capital case; failure to

penalty phase of capital case); Wallace v.

19

investigate defendant‘s organic brain

Stewart, 184 F.3d 1112, 1115-18 (9th Cir.

20

damage may be ineffective assistance of

1999) (counsel was ineffective by failing to

21

counsel; counsel must inquire into social

seek out mental health evidence and bring

22

background, family abuse, substance abuse,

it to attention of defense experts; citing

23

and medical history, and must obtain

Caro v. Calderon, 165 F.3d 1223); Bloom

24

health/school/criminal records); Bemore v.

v. Calderon, 132 F.3d 1267, 1277-78 (9th

25

Chappell, 788 F.3d 1151, 1171 (9th Cir.

Cir. 1997) (counsel has duty to acquire

26

2015) (counsel‘s duty to follow up on

sufficient background material for mental

27

indicia of mental illness much broader

health expert when the expert requests such

28

during penalty phase of capital case). See

information). See AG009657, State Pet. at

28

1

Fed. Pet. at 252.

2

Respondent argues that Petitioner‘s citations render his claim unexhausted because the

3

citations constitute new legal theories that fundamentally alter the theory presented to the

4

California Supreme Court. The Court has reviewed the record and concludes the new

5

citations do not alter Petitioner‘s state habeas legal theory that his counsel was ineffective

6

in failing to investigate, discover, and provide his mental health experts with evidence of

7

Petitioner‘s mental illness during both phases of Petitioner‘s trial. Compare AG009648-

8

63, State Pet. at 69-84 with Fed. Pet. at 252. Although the federal petition contains new

9

citations, the legal theory is essentially the same. The subclaim is exhausted.

10



78.

In his finalized petition, Petitioner argues that his counsel, ―collectively and singularly‖
provided assistance that was constitutionally deficient, that counsel‘s deficient

12
For the Northern District of California

United States District Court

11

representation severely prejudiced him, and that counsel ―collectively and singularly‖

13

failed to adequately investigate and present an insanity defense at the penalty phase of trial.

14

Petitioner also argues that had counsel presented such mitigating evidence, the jury would

15

not have returned a sentence of death. The Court has reviewed the record and concludes

16

that Petitioner‘s argument is essentially an assertion of cumulative error. Petitioner had

17

not previously made any allegations regarding appointed counsel other than Cannady;

18

accordingly, insofar as the claim of cumulative error relies on Petitioner‘s unexhausted

19

Omnibus Facts (see ante, at 20-21), the subclaim is unexhausted.

20



Respondent argues that the following factual allegations in the instant federal petition are

21

unexhausted: approximately ten pages of factual allegations concerning Petitioner‘s

22

defense team during trial (Mintz, Humphrey, Cannady, Olivier, Dr. Benson, Dr. Pierce),

23

including allegations that Mintz failed to conduct any investigation or represent Petitioner

24

during his time as Petitioner‘s lawyer; that Cannady failed to subpoena any of the

25

documents on investigator Olivier‘s list of important documents for penalty phase

26

investigation (prison, school, CYA, parole, or child custody records); that, after Cannady

27

took over, the defense team had no person in charge of penalty phase investigation and

28

preparation; that Humphrey tried to divide each attorney‘s responsibility for the guilt and
29

1

penalty phases, but was turned down by Cannady; that Olivier conducted only a single

2

interview for his penalty phase investigation; that Cannady had not obtained funding for

3

penalty phase investigation until September 1990; that penalty phase investigation did not

4

begin until May 23, 1991, or six days before the prosecution rested its case in the guilt

5

phase of Petitioner‘s trial; that Olivier failed to obtain various medical/mental health

6

records requested by Dr. Pierce; that Dr. Pierce‘s notes and testimony contained several

7

factual errors; and various allegations regarding mental health findings resulting from

8

competency proceedings conducted in this Court. See Fed. Pet. at 253-62. The Court has

9

reviewed the record and concludes that Petitioner has not presented any allegations

from proceedings in this Court, to the California Supreme Court. As these allegations

12
For the Northern District of California

regarding Mintz, Humphrey, or Olivier, or any of the mental health allegations resulting

11

United States District Court

10

would, if proven, support Petitioner‘s argument that his defense team‘s lack of

13

investigation/presentation of mitigating evidence at the penalty phase was a result of a

14

failure of his defense team rather than a strategic decision by counsel, the Court concludes

15

the new allegations would substantially improve the evidentiary posture of Petitioner‘s

16

claim. See Strickland v. Washington, 466 U.S. 668 (defendant is entitled to effective

17

assistance of counsel); Wiggins v. Smith, 539 U.S. 510 (2003) (counsel has duty to perform

18

reasonable investigation); Williams v. Taylor, 529 U.S. 362 (2000) (counsel must conduct

19

investigation into defendant‘s background for penalty phase of trial). Accordingly, the

20

new factual allegations are unexhausted.

21



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

22

unexhausted because it includes facts and arguments from unexhausted claims: Petitioner

23

incorporates by reference ―all previous and subsequent claims and facts alleged in‖ his

24

federal petition (see Fed. Pet. at 253). Respondent is correct. To the extent Claim 9

25

incorporates legal arguments and facts from his unexhausted claims, Claim 9 is

26

unexhausted.

27

For the aforementioned reasons, Claim 9 is partially unexhausted.

28

30

1
2

h.

Claim 10

Petitioner argues that his death sentence was unconstitutionally imposed due to the bailiff

3

tampering with the jury in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

4

See Fed. Pet. at 263. Respondent argues Petitioner never presented Claim 10 to the California

5

Supreme Court, and Petitioner concedes that the claim was not presented in any earlier state

6

proceeding. See Fed. Pet. at 268. Instead, citing Murray v. Carrier, 477 U.S. 478, 488 (1986),

7

Petitioner argues that the Court should excuse the exhaustion requirement because he did not

8

exhaust Claim 10 due to the bailiff‘s failure to inform the trial court and/or counsel that he spoke

9

to the jury. See Docket No. 261 at 8. Murray, however, does not aid Petitioner. There, the

procedural default, the claim of ineffective assistance of counsel should generally be exhausted in

12
For the Northern District of California

Supreme Court held that although ineffective assistance of counsel could constitute cause for

11

United States District Court

10

state court. Murray, 477 U.S. at 488. However, Petitioner does not currently argue that his claim

13

is procedurally defaulted and that such default should not bar his claim; rather, the Court‘s inquiry

14

here is limited to whether Petitioner has exhausted Claim 10.

15

As previously discussed in this Order, see ante at 18-19, Petitioner appears to conflate the

16

doctrines of procedural default and exhaustion. See Cooper v. Neven, 641 F.3d at 327. While

17

procedural default sometimes overlaps with the exhaustion doctrine in that procedural default can

18

effectively foreclose a petitioner‘s access to state remedies, the overlap ends there; a district court

19

will not excuse exhaustion if a petitioner still has a state remedy available. See Coleman v.

20

Thompson, 501 U.S. at 731-32 (petitioner who has procedural defaulted his federal claims meets

21

technical requirements for exhaustion when state remedies are no longer available to him); see

22

also 28 U.S.C. 2254(c) (claim is not exhausted if petitioner ―has the right under the law of the

23

State to raise, by any available procedure, the question presented‖). Accordingly, even if

24

Petitioner was arguing that his claim is procedurally defaulted, Petitioner‘s argument that he was

25

unable to present Claim 10 earlier due to the state‘s suppression of the evidence can presumably

26

be made before the California Supreme Court to excuse any procedural default there. See In re

27

Clark, 5 Cal. 4th at 775 (―where the factual basis for a claim was unknown to the petitioner and he

28

had no reason to believe that the claim might be made, or where the petitioner was unable to
31

1

present his claim, the court will . . . consider the merits of the claim if it is asserted as promptly as

2

reasonably possible). Petitioner must exhaust his claim in state court.

3
4
5

Claim 10 is fully unexhausted.
i.

Claim 11

In his state habeas petition, Petitioner argued that defense counsel was ineffective in

6

questioning Officer Burnham regarding the contents of a paper Petitioner had displayed

7

concerning ―Black History‖ (containing writing that the white man is the enemy), opening the

8

door to testimony regarding Petitioner‘s racial views (citing Fifth, Sixth, Eighth, and Fourteenth

9

Amendments). See AG009685-88, State Pet. 106-109. In his finalized petition, Petitioner now

the Year‖ list and ―the white man is your enemy‖ writing, in violation of his First, Fifth, Eighth,

12
For the Northern District of California

argues that the trial court admitted evidence of his political speech, i.e., Petitioner‘s ―Police Pig of

11

United States District Court

10

and Fourteenth Amendment rights. See Fed. Pet. at 269.

13

Respondent argues that Petitioner has not presented Claim 11 to the California Supreme

14

Court, and Petitioner does not otherwise argue the claim was exhausted. The Court has reviewed

15

the record and concludes that Claim 11 is fundamentally different from Petitioner‘s state court

16

claim. In state court, Petitioner characterized the admission of evidence as ineffective assistance

17

of counsel; Claim 11 here states its admission violated the First Amendment. Although the

18

underlying operative facts are similar, Claim 11 posits a significantly different legal theory. Thus,

19

Petitioner has not fairly presented the claim to the California Supreme Court. See Picard, 404

20

U.S. at 278 (claim that failure to use grand jury to indict defendant violated Fourteenth

21

Amendment equal protection clause not exhausted when state habeas petition cited only Fifth

22

Amendment due process as basis for federal violation); id. at 277-78 (petitioner must present state

23

courts with same claim he urges upon the federal courts). Claim 11 is fully unexhausted.

24
25

j.

Claim 12

Petitioner argues that he was denied his right to be present at his penalty phase trial and

26

that any alleged waiver of his right was invalid. See Fed. Pet. at 273. Respondent argues Claim

27

12 is unexhausted in part due to various subclaims containing new factual and legal allegations.

28

Petitioner contends the claim was exhausted on direct appeal. See Fed. Pet. at 273. The Court
32

1
2

addresses each subclaim in turn.


During his direct appeal, Petitioner argued that the trial court‘s permitting Petitioner to

3

absent himself from the courtroom during Issac Stanley‘s guilt phase testimony deprived

4

Petitioner of his rights to due process, confrontation, an impartial jury, and a reliable

5

determination of his guilt and sentence (citing the Fifth, Sixth, Eighth, and Fourteenth

6

Amendments). See AG008120, AOB Vol. II at 318. In his finalized petition, Petitioner

7

now argues that he was denied his right to be present at his penalty phase trial, that any

8

alleged waiver of his right was invalid, and that his confinement and sentence are illegal,

9

unconstitutional, and void pursuant to the Fifth, Sixth, Eighth, and Fourteenth

assistance of counsel, a fair trial, and a reliable determination of guilt because Petitioner

12
For the Northern District of California

Amendments to the U.S. Constitution, his rights to due process, equal protection,

11

United States District Court

10

did not validly waive his right to be present at trial. See Fed. Pet. at 273. The Court has

13

reviewed the record and concludes that Petitioner did not cite the Fourteenth Amendment‘s

14

equal protection clause or otherwise provide notice to the California Supreme Court that

15

his right to equal protection under any constitutional amendment was violated by

16

ineffective assistance of counsel at the penalty phase of trial. As Petitioner‘s new

17

constitutional argument was never fairly presented in state court, the subclaim is partially

18

unexhausted. See Picard, 404 U.S. at 277-78 (petitioner must present state courts with

19

same claim he urges upon the federal courts); see also Castillo v. McFadden, 399 F.3d at

20

1002 (petitioner did not give state appellate court fair opportunity to rule on federal due

21

process claim by concluding his brief with ―scattershot citation of federal constitutional

22

provisions‖ with no articulated federal legal theory). This subclaim is partially

23

unexhausted.

24



In his finalized petition, Petitioner argues that a trial record needs evidence that a

25

defendant who waives his presence understands the right and the consequences of waiving

26

the right to be present, citing People v. Davis, 36 Cal.4th 510, 532 (2005). Respondent

27

argues that Petitioner‘s citation to People v. Davis fundamentally alters the claim presented

28

to the California Supreme Court. Petitioner‘s federal habeas claim and direct appeal claim
33

Federal Petition

Direct Appeal (State)

3

Petitioner‘s citation to People v. Davis, 36

Even if a capital defendant could voluntarily

4

Cal.4th 510, 532 (2005) to argue that there

waive his right to be present during trial

5

must be evidence that a defendant

testimony, the waiver in the present case

6

understood the right he was waiving and the

would still be defective for lack of

7

consequence of doing so when waiving his

appellant‘s personal on-the-record waiver.

8

presence at trial; where there is scant

In the absence of a personal on-the-record

9

evidence of consent or that the defendant

waiver, it is difficult, if not impossible, to

10

understood the right he was waiving due to

determine whether the defendant has

11

defense counsel‘s waiver for defendant, a

knowingly and intelligently relinquished a

12
For the Northern District of California

are set forth below:

2

United States District Court

1

court cannot conclude defendant knowingly

known right (citing United States v.

13

waived his right to presence at the hearing.

Gordon, 829 F.2d 119, 126 (D.C. Cir.

14

See Fed. Pet. at 276-77.

1987). AG008123-24, AOB Vol. II at 32122.

15
16

The Court has reviewed the record and concludes that Petitioner‘s citation and argument

17

related to Davis is substantially similar to Petitioner‘s argument on direct appeal and does

18

not significantly alter Petitioner‘s claim that the trial court erred by not requiring

19

Petitioner‘s personal knowing/intelligent waiver (as opposed to waiver through counsel) on

20

the record. The subclaim is exhausted.

21



In his finalized petition, Petitioner argues that Respondent argues that he need not establish

22

prejudice from the denial of his right to be present during trial. Respondent argues that

23

Petitioner‘s subclaim is unexhausted because Petitioner now presents a new legal theory,

24

fundamentally altering the claim presented to the California Supreme Court. Petitioner‘s

25

federal habeas claim and direct appeal claim are set forth below:

26

Federal Petition

Direct Appeal (State)

27

Petitioner need not establish prejudice

The right of a defendant to be present at all

28

from the denial of his right to be present

stages of a criminal trial is rooted in the
34

1

during trial; the right to be present is

confrontation and due process clauses of the

2

fundamental and one of the most basic

federal and state constitutions (citing Sixth

3

rights guaranteed by the Confrontation

and Fourteenth Amendments, Illinois v. Allen,

4

Clause (citing Brewer v. Raines, 670 F.2d

397 U.S. 337, 338 (1970)). The California

5

117, 118-19 (9th Cir. 1982). All that need

Supreme Court wrongfully rejected the

6

be shown is that the absence occurred

argument that a capital defendant‘s absence

7

during a critical proceeding; the penalty

from the courtroom during trial testimony

8

phase of a capital trial is a critical

violates the federal constitution in People v.

9

proceeding. See Fed. Pet. at 277-78.

Jackson, 13 Cal.4th 1164 (1996). See

where a waiver might have been permissible

12
For the Northern District of California

AG008120, AOB Vol. II at 318. In situations

11

United States District Court

10

but defective for failure to comply with

13

statutory requisites, reversal is required unless

14

the error can be shown beyond a reasonable

15

doubt to have had no effect on the outcome.

16

In a situation where no waiver may be taken,

17

the standard must be even more stringent.

18

AG008123-24, AOB Vol. II at 322-23.

19

The Court has reviewed the record and concludes that Petitioner has not fairly presented

20

this subclaim to the California Supreme Court. By arguing that no prejudice need be

21

shown from Petitioner‘s absence, Petitioner essentially argues that his absence constituted

22

a structural defect. See Campbell v. Rice, 408 F.3d 1166, 1171 (―[a]utomatic reversal due

23

to a constitutional error is required only if this error was a ‗structural defect‘ that

24

permeated ‗t[t]he entire conduct of the trial from the beginning to end‘ or ‗affec[ed] the

25

framework within which the trial proceeds‖). Petitioner made no such argument in state

26

court. Illinois v. Allen and People v. Jackson, cited by Petitioner during his direct appeal,

27

do not consider whether a defendant‘s absence during testimony is a structural error, but

28

rather focus on whether a defendant can ever waive the constitutional right to be present
35

1

during testimony. Accordingly, the subclaim is unexhausted.

2

For the aforementioned reasons, Claim 12 is partially unexhausted.
k.

3

Claim 13

Petitioner argues that he will not have a meaningful opportunity to present his federal

4
5

constitutional claims to this court as a result of dysfunctional and inadequate state court

6

proceedings in violation of the U.S. Constitution‘s Suspension Clause. See Fed. Pet. at 279.

7

Respondent argues Petitioner has not presented Claim 13 to the California Supreme Court, and

8

Petitioner concedes as much. See id. Petitioner argues, however, that there is no use in further

9

delaying this Court‘s consideration of the claim and that exhaustion should be excused, citing

10

Jones v. Davis, 806 F.3d 538, 545 (9th Cir. 2015). Docket No. 261 at 16.
Jones v. Davis is inapposite in this context. There, a habeas petitioner raised a

12
For the Northern District of California

United States District Court

11

Furman/Lackey claim. The state argued that the claim was unexhausted and barred by Teague,

13

but the district court nevertheless granted the petitioner‘s petition based on the Furman/Lackey

14

claim, holding that exhaustion was excused based on the ―systemic delay and dysfunction‖ of

15

California‘s post-conviction review process. Id. at 542. The Ninth Circuit reversed. After finding

16

that nothing in § 2254(b)(1) requires that a court demand or analyze exhaustion if it denies the

17

writ, the Ninth Circuit held that the claim was procedurally barred by Teague and denied the writ

18

altogether.10 Jones v. Davis, at 545. Accordingly, Jones did not excuse exhaustion where the

19

substantive claim has possible merit. Petitioner does not argue Claim 13 is barred by Teague or

20

otherwise argue that his own habeas claim is unmeritorious; 11 Jones v. Davis is therefore not

21

helpful to Petitioner.
Moreover, while the Court understands that Petitioner‘s case has already gone through

22
23

lengthy litigation, Petitioner has not shown that the California Supreme Court would be ineffective

24

should he file an exhaustion petition in the future. As Petitioner recognized during hearing,

25
10

26
27

Although the majority did not decide whether Jones‘ claim was exhausted or excused from the
exhaustion requirement, the Hon. Paul Watford in concurrence opined that it was not exhausted.
Jones v. Davis, 806 F.3d at 553.
11

28

The Court does not make any rulings as to the merit of Claim 13 at this time. See Rose v.
Lundy, 455 U.S. 509 (total exhaustion of petition required).
36

1

federal habeas petitions are routinely sent back to the California Supreme Court for exhaustion

2

procedures, even if many of them are ultimately unsuccessful. See Docket No. 274-1. And, while

3

undue delay during state court proceedings may sometimes call for excuse of the exhaustion

4

requirement, those cases often involve situations in which direct appeals or state habeas petitions

5

have already been filed but are still pending after years of delay. See Coe v. Thurman, 922 F.2d

6

528, 530-32 (9th Cir. 1990) (in pre-AEDPA case, direct appeal pending in state court for nearly

7

four years); see also Hayes v. Ayers, 632 F.3d 500 (9th Cir. 2011) (rejecting due process claim in

8

case where direct appeal was pending for 11 years). Petitioner‘s case does not fall within this

9

category of cases.

10

12
For the Northern District of California

United States District Court

11

13

In sum, Petitioner has failed to cite controlling authority or properly establish that he
should be excused from the exhaustion requirement. Claim 13 is therefore unexhausted.
l.

Claim 14

Petitioner argues the California death penalty system is unconstitutional because lengthy

14

and unpredictable delays in the implementation of death sentences have resulted in an arbitrary

15

and unfair capital punishment system in violation of the Eighth Amendment prohibition of cruel,

16

torturous, and unusual punishment, and that application of this system to Petitioner violates his

17

Fifth, Sixth, Eighth, and Fourteenth Amendment rights and international law. See Fed. Pet. at 293.

18

Respondent argues Claim 14 is unexhausted in part due to various subclaims containing new

19

factual and legal allegations. Petitioner asserts the claim was exhausted during his state habeas

20

proceedings (Fed. Pet. at 293). The Court has reviewed the record and concludes Claim 14, which

21

asserts the California death penalty scheme‘s delays create a risk that the death penalty will be

22

inflicted in an arbitrary and capricious manner, is significantly different from Petitioner‘s claim

23

before the California Supreme Court that the physical, mental, and emotional suffering caused by

24

a prolonged delay was cruel and unusual. See AG009704-07, State Pet. at 125-28.

25

Petitioner argues, however, that there is no use in further delaying this Court‘s

26

consideration of the claim and that exhaustion should be excused, citing Jones v. Davis, 806 F.3d

27

538, 545 (9th Cir. 2015). Docket No. 261 at 16. For the reasons cited in response to this

28

argument as to Claim 13 above, the Court is not persuaded by Petitioner. Petitioner has failed to
37

1

cite controlling authority or properly establish that he should be excused from the exhaustion

2

requirement. Claim 14 is therefore unexhausted.
m.

3

Claim 15

Petitioner argues that his execution following lengthy confinement under a death sentence

4
5

would constitute cruel and unusual punishment in violation of Petitioner‘s federal constitutional

6

rights and international law. See Fed. Pet. at 297. Respondent argues Claim 15 is unexhausted in

7

part due to various subclaims containing new factual and legal allegations. Petitioner asserts the

8

claim was exhausted during his state habeas proceedings, id., and, alternatively, that exhaustion

9

should be excused (Docket No. 261 at 16). Id. The Court addresses each subclaim in turn.

10



In his state habeas petition, Petitioner argued that the international community is
increasingly realizing that, without regard for the question of the appropriateness or

12
For the Northern District of California

United States District Court

11

inappropriateness of the death penalty itself, prolonged confinement under a death sentence

13

is cruel and degrading and violates international human rights law, citing Pratt v. Attorney

14

General for Jamaica, 4 All.E.R. 769 (1993); Soerig v. United Kingdom, 11 E.H.R.R. 439

15

(1989). See AG009705-06, State Pet. at 126-27.

16

In his finalized petition, Petitioner now asserts that his execution following his

17

lengthy confinement under sentence of death would constitute cruel and unusual

18

punishment in violation of international law, covenants, treaties and norms. See Fed. Pet.

19

at 297. Petitioner argues that his sentence violates the United Nations Convention Against

20

Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR,

21

29th Sess., Agenda Item 99, U.N. Doc. A/Res/39/46 (1984), and specifically alleges that

22

his convictions and death sentence were obtained in violation of Article I, which defines

23

torture in part as any act by which severe pain or suffering is intentionally inflicted on a

24

person by a public official. See Fed. Pet. at 300. Petitioner also asserts that a death

25

sentence is degrading and devastating, citing Reflections on the Guillotine, in Resistance,

26

Rebellion and Death by Camus. See Fed. Pet. at 301.

27
28

The Court has reviewed the record and concludes that Petitioner fairly presented
most of the subclaim to the California Supreme Court when he presented the operative
38

1

facts and argued, as he does so here, that execution after lengthy confinement would

2

constitute ―cruel and degrading‖ punishment and would violate ―international human rights

3

law.‖ Petitioner‘s citation to the U.N. Convention Against Torture‘s Article 1, however,

4

was not fairly presented because Petitioner never argued before the California Supreme

5

Court that he believed his sentence, and the way it was imposed, violated the treaty or

6

otherwise cite to cases discussing the treaty. Although Petitioner cited ―international law‖

7

and various international cases in relation to his claim that prolonged confinement under a

8

death sentence was cruel and unusual punishment, none of the cases discussed Article 1 of

9

the U.N. Convention. See AG009705-06, State Pet. at 126-27; see also AG009722-24,

Covenant on Civil and Political Rights, the American Declaration of Rights and Duties of

12
For the Northern District of California

State Pet. at 143-45 (citing the Universal Declaration of Human Rights, the International

11

United States District Court

10

Man, and the International Convention Against All Forms of Racial Discrimination). The

13

Court therefore concludes that Petitioner‘s cite was insufficient to give the California

14

Supreme Court a chance to rule on the subclaim. See Picard, 404 U.S. at 277-78

15

(petitioner must present state courts with same claim he urges upon the federal courts); id.

16

at 278 (claim that failure to use grand jury to indict defendant violated Fourteenth

17

Amendment equal protection clause not exhausted when state habeas petition cited only

18

Fifth Amendment due process as basis for federal violation); see also Castillo v.

19

McFadden, 399 F.3d at 1002 (petitioner did not give state appellate court fair opportunity

20

to rule on federal due process claim by concluding his brief with ―scattershot citation of

21

federal constitutional provisions‖ with no articulated federal legal theory). The subclaim is

22

unexhausted.

23



In his finalized petition, Petitioner argues that he is not responsible for the delay in his

24

proceedings and that full, fair, and meaningful review of trial court proceedings requires a

25

complete record and effective appellate representation. Respondent argues that

26

Petitioner‘s subclaim is unexhausted because it introduces a new legal theory that

27

fundamentally alters the claim he presented to the California Supreme Court. Petitioner‘s

28

federal and state habeas subclaims are set forth below:
39

State Habeas Petition

Petitioner is not responsible for the delay

Execution of Petitioner following his

3

between his initial sentence and the day

confinement for such a long time under

4

upon which it will be carried out. The

sentence of death would constitute cruel and

5

extended period of his automatic appeal and

unusual punishment in violation of the

6

state habeas proceeding was not his fault.

Fifth, Sixth, Eighth, and Fourteenth

7

Petitioner may not waive his automatic

Amendments (citing Lackey v. Texas).

8

appeal. Full, fair, and meaningful review of

Petitioner‘s confinement on death row, in

9

trial court proceedings requires a complete

part, has been directly attributable to the

10

record (citing Chessman v. Teets, 354 U.S.

California Supreme Court‘s delay in

11

156 (1957)) and effective appellate

appointing counsel and deciding his appeal

12
For the Northern District of California

Federal Petition

2

United States District Court

1

representation. The delays which occurred

and habeas corpus. The appeal from a

13

in Petitioner‘s appeal were caused by factors judgment of death is automatic; Petitioner

14

over which he exercised no discretion or

cannot waive the automatic appeal. See

15

control, and where overwhelmingly

AG009705, State Pet. at 126.

16

attributable to the system in place,

17

established by state and federal law. The

18

delay at issue was caused by the negligence

19

or deliberate action by the state (citing

20

Lackey v. Texas, 514 U.S. 1045 (1995)).

21

See Fed. Pet. at 297-98.

22

The Court has reviewed the record and concludes that in his state habeas petition,

23

Petitioner alleged that the delay in his case is not attributable to him but instead, caused by

24

the state (see AG009705, State Pet. at 126); cited to Lackey v. Texas, 514 U.S. 1045 (1995)

25

(discussing the need to account for ―negligence or deliberate action by the state‖ in

26

considering delay between death sentence and actual execution date). Insofar as Petitioner

27

now states that a complete record and effective appellate representation are necessary for

28

full, fair, and meaningful review, the Court concludes that those allegations are subsumed
40

1

to Petitioner‘s Lackey claim and do not fundamentally alter Petitioner‘s Lackey claim

2

because they do not raise additional federal claims, but rather state general principles of

3

fairness. The subclaim is exhausted.

4



Respondent argues that the following allegations in the finalized petition are unexhausted:

5

Petitioner was not responsible for the delay between his initial sentence and the day it will

6

be carried out (citing People v. Sheldon, 7 Cal.4th 1136, 1139 (1994); In re Medley, 134

7

U.S. 160, 172 (1890)), allegations about the size of Petitioner‘s cell, Petitioner‘s constant

8

surveillance, Petitioner‘s ability to leave his cell, and Petitioner‘s extreme isolation, pain

9

and suffering as a death row inmate, and subjection to handcuffing any time he is

and concludes that Petitioner did not present any evidence regarding his own conditions of

12
For the Northern District of California

transported anywhere. See Fed. Pet. at 297-98, 301. The Court has reviewed the record

11

United States District Court

10

confinement as a result of being confined to San Quentin‘s death row (see Fed. Pet. at 298)

13

to the California Supreme Court. Because the new allegations could substantially improve

14

the evidentiary posture of his claim that execution following his lengthy confinement on

15

death row would constitute cruel and unusual punishment, Petitioner‘s new allegations are

16

unexhausted. Compare AG009704-07, State Pet. at 125-28 with Fed. Pet. at 297-98, 301.

17

See Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006).

18



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

19

unexhausted: execution after prolonged confinement would not advance the penological

20

goals of deterrence and retribution. See Fed. Pet. at 298-99. The Court has reviewed the

21

record and concludes Petitioner gave the court sufficient notice of the legal doctrine that

22

Petitioner was, and is now, invoking when he cited Lackey, 514 U.S. 1045, which

23

discusses the penological goals of execution, in his state habeas claim. See AG009705,

24

State Pet. at 126. The subclaim is therefore exhausted.

25



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

26

unexhausted: execution after prolonged confinement is unusual in the historic context.

27

See Fed. Pet. at 299. Petitioner alleges that the average wait on death row was 51 months

28

after Furman, but as of 2011, waiting time was almost 15 years (citing Valle v. Florida,
41

1

564 U.S. 1067 (2011) (Breyer, J., dissenting from denial of stay). The Court has reviewed

2

the record and concludes that although Petitioner did not present these figures to the

3

California Supreme Court, this specific fact does not fundamentally alter his claim that

4

execution after a prolonged delay violates the Eighth Amendment‘s guarantee against cruel

5

and unusual punishment.

6



Respondent argues that the following allegation is unexhausted: execution after prolonged

7

confinement would be cruel and unusual in his case due to his mental illness. See Fed. Pet.

8

at 301. The Court has reviewed the record and concludes that Petitioner had not

9

previously made this argument to the California Supreme Court. Petitioner‘s new legal

significantly improve the evidentiary standing of his Lackey claim as it relates to whether

12
For the Northern District of California

theory, especially paired with Petitioner‘s new evidence of mental illness, would

11

United States District Court

10

the penological goals of the death penalty would be served by his execution. See Atkins v.

13

Virginia, 536 U.S. 304, 317 (2002). The subclaim is therefore unexhausted.

14



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

15

unexhausted: the method of execution will result in torture and severe pain and suffering,

16

violating federal and state constitutions and international law. See Fed. Pet. at 301. The

17

Court has reviewed the record and concludes that Petitioner did not allege a violation of

18

international law in reference to his method of execution claim in the California Supreme

19

Court. Compare AG009715-22, State Pet. at 136-43 with Fed. Pet. at 301. Because

20

Petitioner did not give the California Supreme Court notice that he was invoking

21

international law as to his method of execution argument, the subclaim is partially

22

unexhausted.

23

Petitioner argues, however, that there is no use in further delaying this Court‘s

24

consideration of the claim and that exhaustion should be excused, citing Jones v. Davis, 806 F.3d

25

538, 545 (9th Cir. 2015). Docket No. 261 at 16. For the reasons cited in response to this

26

argument as to Claim 13, see ante at 37-38, the Court is not persuaded by Petitioner. Petitioner

27

has failed to cite controlling authority or properly establish that he should be excused from the

28

exhaustion requirement. Accordingly, Claim 15 is partially unexhausted.
42

n.

1

Claim 17

2

Petitioner argues that the California death penalty statute is unconstitutional and its

3

application to Petitioner‘s sentence violated his Fifth and Fourteenth Amendment rights. See Fed.

4

Pet. at 305. Respondent argues that subclaims 17D, 17E, and an unenumerated subclaim are

5

unexhausted. Petitioner asserts the whole claim was exhausted on direct appeal. See Fed. Pet.

6

307. The Court will address each subclaim in turn.


7

Respondent argues that the following subclaim in Petitioner‘s finalized petition is

instruction on the standard of proof for mitigating circumstances and failed to inform the

10

jury that it did not need unanimity concerning the existence of mitigating circumstances.

11

See Fed. Pet. at 310. The Court has reviewed the record and concludes that Petitioner has

12
For the Northern District of California

unexhausted: 17D, i.e., that the California death penalty statute failed to provide an

9

United States District Court

8

not previously made this argument in the California Supreme Court. Because the

13

California Supreme Court has not ruled on the subclaim; subclaim 17D is fully

14

unexhausted.


15

Respondent argues that the following subclaim in Petitioner‘s finalized petition is

16

unexhausted: 17E, i.e., that the wording of several of the factors set forth in the Penal

17

Code prevents full consideration of mitigation.12 See Fed. Pet. at 311. The Court has

18

reviewed the record and concludes Petitioner did not previously challenge the wording of

19

Penal Code section 190(f) and (g) or otherwise argue that the words ―reasonably believed‖

20

and ―extreme‖ in each respective section led the jury to believe they could not consider as

21

mitigation lesser degrees of mental/emotional disturbance or an unreasonable belief of

22

moral justification. Petitioner also did not previously argue that the word ―impaired‖ in

23
24
25
26
27
28

12

In relevant part, Petitioner challenges the wording for the following factors: Cal. Pen. Code
§ 190(f), which states that the jury may consider ―whether or not the offense was committed under
circumstances which the defendant reasonably believed to be a moral justification or extenuation
for his conduct‖ (emphasis added); Cal. Pen. Code § 190(g), which states that the jury may
consider ―whether or not the defendant acted under extreme duress or under the substantial
domination of another person‖ (emphasis added); and Cal. Pen. Code § 190(h), which states that a
jury may consider ―whether or not at the time of the offense the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to the requirements of the law
was impaired as a result of‖ mental disease or intoxication (emphasis added).
43

1

section 190.3(h) led jurors to believe they could only consider impairment as a mitigating

2

factor if Petitioner‘s mental illness what was caused the crime (Petitioner argues such a

3

limitation would be contrary to the California Supreme Court‘s holding in People v.

4

Lucero, 44 Cal.3d 1006, 1029-31 (1988) that a defendant is entitled to have the jury

5

consider his psychological disorder as a mitigating factor even if the mental condition did

6

not cause him to commit the crimes or was not otherwise operative at the time of the

7

offense). Finally, Petitioner did not previously present evidence of an Illinois survey

8

conducted by Professor Hans Zeisel in which he concluded that between 38.9 and 67.7%

9

of respondents believed they were not allowed to rely on unlisted mitigating factors in

Petitioner‘s new legal theories were never presented to the California Supreme Court and

12
For the Northern District of California

deciding whether to vote for a sentence less than death. See Fed. Pet. at 311-13. Because

11

United States District Court

10

Professor Zeisel‘s survey results would significantly improve the evidentiary posture of his

13

subclaim that the wording in the factors was confusing or misleading, Subclaim 17E is

14

unexhausted.

15



Respondent argues that the following unlabeled subclaim in Petitioner‘s finalized petition

16

is unexhausted: standing alone or taken together, the errors require reversal of the sentence

17

imposed. See Fed. Pet. at 315. The Court has reviewed the record and concludes

18

Petitioner did not previously raise a claim as to cumulative effect of the various alleged

19

instructional errors, and even if Petitioner had previously raised the cumulative error claim,

20

the new factual allegations and legal theories discussed above would necessarily render it

21

fundamentally altered. See Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008) (cumulative

22

error claim must either be sufficiently intertwined with an exhausted claim, in that raising

23

one claim necessarily raises the cumulative error claim, or otherwise be explicitly raised in

24

state court). Accordingly, the subclaim is fully unexhausted.

25

For the foregoing reasons, Claim 17 (including subclaims 17D, 17E, and the unlabeled

26
27
28

cumulative error subclaim) is partially unexhausted.
o.

Claim 18

Petitioner argues that he cannot be lawfully executed because the method of execution in
44

1

California violates federal constitutional and international law. See Fed. Pet. at 316. Respondent

2

argues Claim 18 is unexhausted in part due to various subclaims containing new factual and legal

3

allegations. Petitioner asserts the claim was exhausted during his state habeas proceedings. See

4

Fed. Pet. at 316. The Court addresses each subclaim in turn.

5



Respondent argues that the following subclaim is unexhausted because it presents a new

Federal Petition

State Habeas Petition

8

The California Department of Corrections

California‘s execution procedures (gas and

9

and Rehabilitation‘s (―CDCR‖) failed to

lethal injection) violate the federal

10

develop and promulgate a valid lethal

constitution in two respects: first, the state

11

injection protocol under the Administrative

failed to comply with the statutory

12
For the Northern District of California

legal theory:

7

United States District Court

6

Procedures Act (―APA‖) and the method of

requirement that standards be established by

13

execution must adhere to standards

the Department of Corrections (citing Penal

14

established under the direction of the CDCR

Code § 3604(a)). Second, both statutory

15

pursuant to California Penal Code

methods of execution constitute cruel and

16

§ 3604(a). See Fed. Pet. at 317. California

unusual punishment under the Eighth

17

does not have a valid protocol for

Amendment. See AG009707-09, State Pet.

18

implementing execution by lethal gas under

at 128-30. California did not comply with

19

the APA.

APA requirements in developing its lethal

20

injection protocol. See AG009710, State

21

Pet. at 131.

22

The Court has reviewed the record and concludes that Petitioner fairly presented this

23

subclaim when he presented an almost identical argument during his state habeas

24

proceedings. The subclaim is exhausted.

25



Respondent argues that the following subclaim in Petitioner‘s finalized petition is

26

unexhausted: Petitioner‘s citation, over the course of four pages, to various prolonged or

27

botched executions. See Fed. Pet. at 318-322. The Court has reviewed the record and

28

concludes Petitioner also listed various examples of prolonged or botched executions in his
45

1

state habeas petition, including various examples he repeats in his federal petition. Insofar

2

as Petitioner includes new recent examples of prolonged or botched executions, the

3

examples do not fundamentally alter the claim considered by the California Supreme Court

4

because they are substantially similar to the previous examples already provided.

5

Compare AG009717-21, State Pet. at 138-42 (examples of botched executions either

6

because no suitable veins were found or because of an unexpected reaction with the drugs)

7

with Fed. Pet. at 318-22 (same). The subclaim is exhausted

8



Respondent argues that the following subclaim in Petitioner‘s finalized petition is
unexhausted: the method of execution results in violations of the Fifth and Sixth

9

The Court has reviewed the record and concludes Petitioner never alleged the method of

12
For the Northern District of California

Amendments and ―international law, covenants, treaties and norms.‖ See Fed. Pet. at 316.

11

United States District Court

10

execution violated the Fifth or Sixth Amendments or international law (he only asserted

13

Eighth and Fourteenth Amendment claims); as the California Supreme Court did not have

14

notice Petitioner was challenging the method of execution on these additional federal

15

grounds, the subclaim is fully unexhausted.

16



In his state habeas petition, Petitioner argued that California‘s method of execution

17

violated the Eighth Amendment because its use of lethal injection in the administration of

18

the death penalty fails to protect condemned prisoners from unnecessary pain and suffering

19

and that the risk of inflicting such cruel and unusual pain is enhanced with the lack of

20

established/comprehensive protocols. See AG009722, State Pet. at 143. In his finalized

21

petition, Petitioner now argues, citing Morales v. Tilton, 465 F.Supp. 2d 972, 981 (N.D.

22

Cal. 2006), that California‘s actions/failures to act with respect to implementation of its

23

lethal injection protocol resulted in an intolerable risk of violation of the Eighth

24

Amendment. See Fed. Pet. at 317. The Court has reviewed the record and concludes

25

Petitioner fairly presented the operative facts and constitutional/legal theories to the

26

California Supreme Court during his state habeas petition. The subclaim is exhausted.

27
28



Respondent argues that the following subclaim in Petitioner‘s finalized petition is
unexhausted: Petitioner‘s allegation that the risk of prolonged or botched administration of
46

1

an execution violates international law and that ―[a]waiting death is a form of

2

psychological torture evidence by the fact that mock executions . . . are a common torture

3

tactic.‖ See Fed. Pet. at 322. The Court has reviewed the record and concludes Petitioner

4

did not make the international law argument during his proceedings in the California

5

Supreme Court. Because Petitioner did not previously give notice to the California

6

Supreme Court that he was arguing that the administration of the lethal injection violated

7

international law, this subclaim is unexhausted.

8

For the aforementioned reasons, Claim 18 is partially unexhausted.

9
10

p.

Claim 19

Petitioner argues that he is permanently incompetent and may not be executed under Ford.
See Fed. Pet. at 324. Respondent argues that Petitioner has not presented this claim to the

12
For the Northern District of California

United States District Court

11

California Supreme Court, and Petitioner concedes as much. See Fed. Pet. at 330. Petitioner

13

argues, however, that Claim 19 does not require exhaustion because it does not challenge or attack

14

the judgment made by the state and is therefore not a ―claim‖ in the traditional sense of federal

15

habeas. Alternatively, Petitioner argues exhaustion should be excused for futility. See Fed. Pet. at

16

330; Docket No. 261 at 19.

17

In support of his first contention, Petitioner cites to Justice Thomas‘s dissent in Stewart v.

18

Martinez-Villareal, 523 U.S. 637, 652, fn. 3 (1998). There, the Supreme Court held that filing a

19

second habeas petition alleging only Ford incompetency is not barred as a successive petition

20

when the facts supporting the Ford claim arise after the petitioner‘s initial federal petition has

21

been decided. Id. at 639. In the portion of Justice Thomas‘ dissent cited by Petitioner, Justice

22

Thomas argued that Ford claims should not be cognizable in federal habeas at all, reasoning that

23

Ford claims fall outside the writ‘s original purpose and outside of section 2254 by challenging

24

when or whether a sentence can be carried out, not whether a petitioner is ― ‗in custody in

25

violation of the Constitution or laws or treaties of the United States.‘ ‖ Id. at 652 & fn. 3 (internal

26

citation omitted). Petitioner‘s citation to the dissent is misplaced. Although Justice Thomas

27

indeed argues in Martinez-Villareal that Ford claims are not cognizable in federal habeas law, the

28

Supreme Court in numerous cases appear to assume Ford claims are in fact cognizable in a habeas
47

1

proceeding. See, e.g., Ford, 477 U.S. at 404 (claim considered after unsuccessful challenge to

2

competency before Florida Supreme Court); Pannetti, 551 U.S. 930 (Ford claim considered on

3

habeas). Petitioner has cited no cases holding otherwise. In any event, Petitioner brings Claim 19

4

as a federal habeas claim; as such, it is in the first instance subject to the exhaustion requirement

5

as any other habeas claim. See 28 U.S.C. § 2254(b). 13
Petitioner also argues, however, that no adequate remedy exists for him to exhaust, thus

6
7

excusing exhaustion. Under section 2254(b), exhaustion may be excused where there is no state

8

corrective process or the process is ineffective to protect the inmate‘s rights. 28 U.S.C.

9

§ 2254(b)(1). Section 2254(c) states that ―an applicant shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of the state to

11

raise, by any available procedure, the question presented.‖ (Emphasis added.)

12
For the Northern District of California

United States District Court

10

In arguing that California lacks an adequate remedy for Ford claims, Petitioner focuses on

13

California Penal Code section 3700 et seq., the statutory scheme for determination of competency

14

for execution. See Docket No. 261 at 8-9 (citing arguments discussed in Docket No. 164 at 4-8).

15

Penal Code section 3700 states that ―[n]o judge, court, or officer, other than the Governor, can

16

suspend the execution of a judgment of death, except the warden of the State prison to whom he is

17

delivered for execution, as provided in the six succeeding sections, unless an appeal is taken.‖ In

18

relevant part, Penal Code section 3701 states that a warden must initiate proceedings to determine

19

a petitioner‘s competency if ―there is good reason to believe that a defendant, under a judgment of

20

death, has become insane.‖ The process requires that the warden contact the district attorney in

21

the county of the inmate‘s confinement, and the district attorney will then file a petition in state

22

court, empanel a jury, and conduct grand jury-like proceedings to determine whether the inmate is

23

in fact insane. Cal. Pen. Code §§3701-03. Petitioner correctly points out that the Penal Code

24

section 3700 et seq. procedure, which is triggered after an execution date is set, vests discretion of

25

commencing competency proceedings solely in the hands of the condemned prisoner‘s warden,

26

and neither the condemned nor the courts may order a warden to initiate those proceedings. See

27
13

28

The Court does not at this juncture determine whether a Ford claim is cognizable exclusively
through habeas or whether it may also be brought pursuant to 42 U.S.C. § 1983.
48

1

Caritativo v. Teets, 47 Cal.2d 304 (1956) (court may not issue writ of mandamus compelling

2

warden to initiate competency proceedings). Hence there is a strong argument that Penal Code

3

section 3700 does not provide a remedy in the courts of California to address the Ford claim.

4

On the other hand, Respondent relies on California Penal Code section 1473 to argue there

5

is a state judicial remedy. Penal Code section 1473 states that a person ―unlawfully imprisoned or

6

restrained of his or her liberty, under any pretense, may prosecute a writ of habeas corpus. . . .‖

7

Cal. Pen. Code § 1473(a). An inmate may also bring claims that a sentence constitutes cruel and

8

unusual punishment pursuant to Penal Code section 1473. See People v. Reece, 66 Cal.App.3d 96,

9

98 (―habeas is the proper means of challenging a sentence which, as applied, is cruel or unusual‖)
(citing People v. Wingo, 14 Cal.3d 169, 183 (1975); see also Cal. Pen. Code § 1473(d) (statute

11

does not limit the grounds for which a writ of habeas corpus may be prosecution).

12
For the Northern District of California

United States District Court

10

The issue whether Penal Code section 1473 provides a means of addressing a Ford claim is

13

currently before the California Supreme Court in McPeters (Ronald Avery) on Habeas Corpus,

14

S226918. In McPeters, the parties agree that the petitioner (McPeters) is permanently

15

incompetent for execution. However, McPeters argues that Penal Code § 3700 et seq. is

16

inadequate to secure his rights, rendering California‘s death penalty scheme unconstitutional. See

17

McPeters (Ronald Avery) on Habeas Corpus, S226918, Pet. at 16-26. The respondent in

18

McPeters argues, as Respondent argues here, that Ford claims are indeed cognizable on state

19

habeas and urges the California Supreme Court to issue an order to show case on the Ford claim.

20

Until the California Supreme Court decides McPeters, the Court will not excuse exhaustion based

21

on futility. The Court therefore will require exhaustion of the Ford claim, but without prejudice to

22

reconsideration if warranted by the California Supreme Court‘s ensuing ruling in McPeters.

23
24
25

As Petitioner has not yet shown that the state process would be inadequate to secure his
remedy as to this claim, Claim 19 is fully unexhausted.
q.

Claim 20

26

Respondent argues Petitioner‘s claim that the cumulative effect of errors and constitutional

27

violations alleged in the petition require that Petitioner‘s conviction and death sentence be vacated

28

is unexhausted because it is based on Petitioner‘s finalized petition, which contains various
49

1

unexhausted claims and subclaims. See Fed. Pet. at 332. To the extent that Claim 20 incorporates

2

unexhausted claims identified in this Order, it is partially unexhausted.

3

3.

Conclusion

4

Claims 3, 4, 8, 9, 12, 15, 17 (including 17D, 17E, and the unlabeled cumulative error

5

subclaim), 18, and 20 are partially unexhausted. Claims 1, 2, 7, 10, 11, 13, 14, and 19 are fully

6

unexhausted.

7

IV.

EQUITABLE ESTOPPEL, RENEWED MOTIONS, ADMINISTRATIVE MOTION,
REQUEST FOR HEARING, AND PROPOSITION 66 STAY

8

In his Opposition to Respondent‘s Motion to Dismiss, Petitioner argued that the Court

9

claims, facts, and ‗legal bas[e]s‘ which Respondent contends require exhaustion.‖ Id. Petitioner

12
For the Northern District of California

should estop Respondent from raising the defense of nonexhaustion ―as to all of the disputed

11

United States District Court

10

also (1) renewed his Motion for Equitable Relief (Docket No. 226), (2) renewed his Motion for

13

Sanctions (Docket No. 228), (3) filed a Motion for Administrative Relief for leave to file a

14

surreply related to his Motion for Sanctions (Docket No. 274); (4) requested that the Court grant a

15

hearing to determine whether exhaustion should be excused based on section 2254(e)(2)(A)(ii) &

16

(b)(1)(B); and (5) requested that the Court dismiss Respondent‘s Motion to Dismiss without

17

prejudice and stay proceedings until Proposition 66 was no longer stayed by the California

18

Supreme Court. See Docket No. 261 at 3, 4, 6, & 17. The Court addresses each item in turn.

19

A.

Equitable Estoppel
Petitioner argues that he is entitled to equitable estoppel against Respondent‘s assertions of

20
21

nonexhaustion for all claims based on the doctrine of unclean hands. See Docket No. 261 at 3.14

22

Respondent argues that estoppel cannot be asserted in the context of exhaustion of federal habeas

23

claims. Respondent also argues that in any event, Petitioner is not entitled to estoppel. See

24

Docket No. 263 at 11-14.
In support of his estoppel argument, Petitioner cites Ziemba v. Wezner, 366 F.3d 161, 163

25
26
27
28

14

Although Petitioner makes the argument as to all claims, he also specifically points to Claims 1,
2, 3, 4, 7, 8, and 9 in relation to his equitable estoppel arguments. See Docket No. 261 at 3-7. The
Court will consider them collectively.
50

1

(2d Cir. 2004) and Ruggiero v. County of Orange, 467 F.3d 170, 178 (2d Cir. 2006), in which the

2

Second Circuit Court of Appeals held that the failure to exhaust claims under the Prison Litigation

3

Reform Act (―PLRA‖) is an affirmative defense which may be subject to estoppel. However,

4

section 2254(b)(3) governing habeas proceedings (as distinct from PLRA suits) explicitly

5

precludes the Court from estopping the state from asserting nonexhaustion. It stated in relevant

6

part: ―[a] State shall not be deemed to have waived the exhaustion requirement or be estopped

7

from reliance upon the requirement unless the State, through counsel, expressly waives the

8

requirement.‖ (Emphasis added). The PLRA has no such provision. Ziemba and Ruggiero are

9

therefore inapposite.

10

Petitioner also argues that the Court has inherent power to estop Respondent from asserting
nonexhaustion. See Docket No. 261 at 5. But applying any such inherent power would

12
For the Northern District of California

United States District Court

11

contravene the plain language of section 2254(b)(3). See Banks, 540 U.S. at 705 (―AEDPA

13

forbids a finding that exhaustion has been waived unless the State expressly waives the

14

requirement [under] 28 U.S.C. § 2254(b)(3)‖); United States v. Texas, 507 U.S. 529, 534 (1993)

15

(statute abrogates common-law principle when it ―speak[s] directly‖ to that principle); cf. Whaley

16

v. Belleque, 520 F.3d 997 (9th Cir. 2008) (estopping state from asserting procedural default for

17

failure to pursue remedies).

18

Petitioner additionally argues that the Court has power to estop Respondent from asserting

19

nonexhaustion based on Federal Rule of Civil Procedure 37 (―Rule 37‖). Docket No. 261 at 6.

20

Rule 37 allows a court to impose appropriate sanctions on a party for, among other reasons, failure

21

to comply with that court‘s order. Fed. R. Civ. Pro. 37(b)-(c). Here, Petitioner does not argue that

22

Respondent failed to comply with any of this Court‘s orders for discovery; in fact, the basis of

23

some of Petitioner‘s new claims and subclaims arose out of evidence that was turned over during

24

federal discovery, revealing possible suppression in the state courts. Hence, there is no violation

25

warranting sanctions under Rule 37. In any event, Petitioner cites no authority suggesting that

26

Rule 37 can be applied in contravention of section 2254(b)(3) given that the Federal Rules of Civil

27

Procedure apply to federal habeas proceedings only ―to the extent that they are not inconsistent

28

with any statutory provisions.‖ Rules Governing Section 2254 Cases, rule 12.
51

1

Section 2254(b)(3)‘s explicit limit on the Court‘s power to estop Respondent from asserting

2

nonexhaustion prevails over Rule 37.

3

Petitioner‘s request that the Court equitably estop Respondent from asserting

4

nonexhaustion as to all claims, including Claims 1, 2, 3, 4, 7, 8, and 9, is therefore DENIED.

5

B.

Motion for Equitable Relief
Petitioner argues that the Court should grant Petitioner an indefinite stay of proceedings

6
7

because the state court delays, the inadequacy of the proceedings, and his permanent

8

incompetence have made his claims of ineffective assistance of counsel unreviewable by this or

9

any other court. See Docket No. 226 at 45. Respondent argues that an indefinite stay is

10

inappropriate. See Docket No. 266 at 2.
This Court previously considered whether it may issue a permanent stay in the context of

12
For the Northern District of California

United States District Court

11

Petitioner‘s permanent incompetence in its Order of July 16, 2013.15 See Docket No. 106 at 2-4.

13

Shortly before the Court issued that Order, the Supreme Court decided Ryan v. Gonzales, 133

14

S.Ct. 696 (2013). In Ryan, the Supreme Court held that while the decision to grant a temporary

15

competency stay is within the discretion of the district court, an indefinite stay is not appropriate if

16

there is no reasonable hope the petitioner will regain competence in the foreseeable future. Id. at

17

706-09. The Court explained that permanently staying a federal habeas petition would frustrate

18

AEDPA‘s objective of encouraging finality by allowing a petitioner to delay the resolution of

19

federal proceedings. The Supreme Court also noted that ―[i]f a district court concludes that [a

20

specific claim] could substantially benefit from the petitioner‘s assistance, [the court] should take

21

into account the likelihood that the petitioner will regain competence in the foreseeable future.

22

Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the

23

State‘s attempts to defend its presumptively valid judgment.‖ Id. at 709.

24

As Respondent points out, other district courts in our circuit have since interpreted Ryan as

25

barring indefinite competency stays when a petitioner is permanently incompetent. See Huggins v.

26

Chappell, 06-cv-07254-YGR, 2013 WL 843296 (N.D. Cal. 2013) (―The [Supreme Court in Ryan]

27
15

28

In that Order, the Court lifted its stay of the case, deferred the case for potential settlement, and
ordered the parties to set a schedule for competency proceedings.
52

1

held that . . . an indefinite stay is inappropriate if there is no reasonable hope the petitioner will

2

regain competence in the foreseeable future‖); Gates v. Davis, 88-cv-2779-WHA, 2016 WL

3

1598748 at *2 (N.D. Cal. 2016) (same); Mulder v. Baker, 09-cv-00610-PMP-WGC, 2013 WL

4

5758061 (D. Nev. 2013) (―even if [the petitioner‘s] petition contains claims that could

5

substantially benefit from his assistance, he is eligible for a stay only if there is at least a

6

reasonable hope that he will regain competence in the foreseeable future‖).16 While the Court

7

previously declined to follow Ryan based on its interpretation that the disputed language was

8

dicta, the Court now joins the other district courts, all of which have concluded otherwise. Insofar

9

as Petitioner argues he is entitled to an indefinite stay based on his alleged permanent

10

incompetence, the Court denies the stay on that ground.17
Petitioner also argues that the delays and inadequacies in his state court proceedings, the

12
For the Northern District of California

United States District Court

11

time elapsed since his conviction, and his permanent incompetence have prejudiced him by

13

rendering certain claims, including his ineffective assistance of counsel claims, unreviewable in

14

any meaningful way. As a result, Petitioner argues he is nevertheless entitled to a permanent stay.

15

See Docket No. 226 at 45. In support, Petitioner asserts that federal habeas law allows for flexible

16

remedies responsive to the petitioner‘s specific circumstances, citing Lujan v. Garcia, 734 F.3d

17

917, 933 (9th Cir. 2013). In Lujan, the district court granted a petitioner‘s habeas claim and

18

allowed the state to modify the petitioner‘s convictions, originally for first-degree murder, to

19

second-degree murder in lieu of releasing or retrying him. Id. at 933. The Ninth Circuit explained

20

that district courts have wide discretion in fashioning a remedy as long as it is ―tailored to the

21

injury suffered from the constitutional violation and [does] not unnecessarily infringe on

22

competing interests.‖ Id. The Ninth Circuit then vacated the trial court‘s remedy on other

23

grounds. Id. at 935. Lujan is inapposite in this context. This Court has not granted Petitioner‘s

24
16

25
26
27

The Ninth Circuit recognized that ―the [Supreme] Court‘s conclusion that ‗[w]here there is no
reasonable hope for competence, a stay is inappropriate‘ ‖ was applicable to post-AEDPA
petitions in Medina v. Chappell, 781 F.3d 1076, 1089-91 (9th Cir.), vacated and remanded, 782
F.3d 1115 (9th Cir. 2015), which was vacated as moot upon the petitioner‘s death shortly after it
issued its decision. While the opinion has no precedential value, it is instructive.
17

28

The Court will not decide at this time whether Petitioner is incompetent for purposes of
execution.
53

1

habeas petition and is not fashioning a remedy based on Petitioner‘s showing that a constitutional

2

violation has occurred as in Lujan. Accordingly, Lujan lends no support to Petitioner‘s contention

3

that he is entitled to an indefinite stay at this point in his litigation, and certainly does not support

4

Petitioner‘s argument that the Court has the power to grant such a stay in this context.
In any event, Petitioner‘s argument lacks factual merit. Petitioner argues that the various

5
6

issues related to funding, passage of time, ineffective assistance of counsel, and concealment of

7

evidence by the State renders Petitioner‘s ability to exhaust his claims futile. The Court rejects

8

that argument. First, Petitioner has not explained how the alleged paucity of funding for his

9

representation in state court during his past habeas proceedings would render his exhaustion

new evidence through discovery and competency proceedings in this Court, including evidence

12
For the Northern District of California

petition ineffective in light of the fact that Petitioner has already obtained a significant amount of

11

United States District Court

10

regarding Petitioner‘s incompetence, Batson issues, alleged ineffective assistance of counsel, and

13

various other documents related to his claims that could ultimately entitle him to relief in state

14

court. Moreover, Petitioner has not shown that circumstances will render the process ineffective;

15

on the contrary, many of Petitioner‘s arguments before this Court regarding why the Court should

16

estop Respondent from asserting nonexhaustion – including the alleged suppression of evidence

17

by the state and ineffective assistance of counsel – may be made before the California Supreme

18

Court to cure any procedural default. See In re Clark, 5 Cal. 4th 750, 775 (1993) (―where the

19

factual basis for a claim was unknown to the petitioner and he had no reason to believe that the

20

claim might be made, or where the petitioner was unable to present his claim, the court will …

21

consider the merits of the claim if it is asserted as promptly as reasonably possible‖); see also In re

22

Reno, 55 Cal.4th 428, 463 (2012) (court may, in some circumstances, consider the merits of a

23

claim not previously presented by incompetent habeas counsel).
Accordingly, Petitioner‘s Motion for Equitable Relief is DENIED.

24
25
26

C.

Motion for Sanctions & Administrative Motion
Petitioner argued in his Motion for Sanctions that the Court should enter a default

27

judgment in his favor on Claim 3, his Batson claim, based on the State‘s purported concealment of

28

evidence supporting the claim. See Docket No. 228 at 8. However, following a hearing on the
54

1

motion, in which the Court indicated that relief for Petitioner was dubious,18 Petitioner filed an

2

Administrative Motion in which the attached Proposed Surreply introduced new citations and

3

sought to narrow Petitioner‘s proposed remedy for his Motion for Sanctions. See Docket No. 274

4

at 2 & No. 247-2 at 2-3.
As a threshold matter, the Court considers Petitioner‘s Administrative Motion. In support

5
6

of his Administrative Motion, Petitioner argues that the allegations and legal authorities in the

7

Proposed Surreply (Docket No. 247-2) were not presented before due to the exhaustion of his

8

attorneys‘ Phase 2 CJA budget, and that the attorneys ―could not have presented these facts and

9

law through the exercise of reasonable diligence before the Court raised its questions at the March

proposed remedy for his Motion for Sanctions: rather than seeking a default judgment on Claim 3,

12
For the Northern District of California

9, 2017 hearing.‖ Docket No. 274 at 2; see No. 274-2 at 1. Additionally, Petitioner narrows the

11

United States District Court

10

Petitioner now seeks that the Court grant him de novo review on Claim 3 following the conclusion

13

of his exhaustion proceedings. See Docket No. 247-2 at 2-3. In his opposition, Respondent

14

argues that the allegations and legal authorities in the Proposed Surreply should have been

15

included in Petitioner‘s prior briefs because they are simply additional authorities in support of

16

Petitioner‘s original arguments and that Petitioner has not shown good cause for filing them after

17

the hearing. See Docket No. 275 at 3. Respondent‘s opposition does not reference or

18

acknowledge the new proposed sanctions remedy in Petitioner‘s Proposed Surreply.
Having considered both parties‘ arguments, the Court finds that although Petitioner could

19
20

have arguably presented the allegations and legal authorities on his own in a previous filing, the

21

authorities contained in the Proposed Surreply were responsive to specific questions posed by the

22

Court at the March 9, 2017 hearing, especially as they related to the futility of California

23

exhaustion procedures and the Court‘s power to grant the sanction sought by Petitioner.

24

Petitioner‘s Administrative Motion is therefore GRANTED.
However, the Court concludes it would be inappropriate to consider the additional

25
26
18

27
28

Specifically, the Court expressed skepticism that it had the power to grant Petitioner a default
judgment on an unexhausted claim based on section 2254(b)‘s explicit prohibition against waiving
or otherwise preventing the State‘s ability to require exhaustion of state remedies. The Court also
questioned whether there was any basis for a Rule 37 remedy in this case.
55

the Court consider Claim 3 de novo following Petitioner‘s exhaustion proceedings, renders the

3

Motion for Sanctions premature. See Docket No. 247-2 at 2-3. First, the Court has not yet

4

granted any request for a Rhines19 stay while Petitioner exhausts his claims in state court.

5

Moreover, Petitioner‘s requested remedy presupposes that should Petitioner return to the

6

California Supreme Court for exhaustion proceedings, the court will deny his Batson claim.

7

However, denial of Petitioner‘s Batson claim is not certain. Petitioner‘s claim contains significant

8

new evidence that could very well excuse any procedural default and potentially prove meritorious

9

in state court. See In re Clark, 5 Cal. 4th 750, 775 (1993) (―where the factual basis for a claim

10

was unknown to the petitioner and he had no reason to believe that the claim might be made, or

11

where the petitioner was unable to present his claim, the court will . . . consider the merits of the

12
For the Northern District of California

allegations and legal authorities at this time because Petitioner‘s new proposed remedy, i.e., that

2

United States District Court

1

claim if it is asserted as promptly as reasonably possible‖); see Foster v. Chatman, 136 S.Ct. 1737

13

(2016) (using prosecutor‘s file to find discriminatory intent in prosecutor‘s peremptory

14

challenges).
Accordingly, Petitioner‘s Motion for Sanctions (Docket No. 228) is DENIED WITHOUT

15
16

PREJUDICE. Petitioner may re-file a sanctions motion seeking his new proposed remedy

17

following the conclusion of any exhaustion procedures should it still be necessary at that time.

18

D.

Request for Hearing Pursuant to 28 U.S.C. § 2254(e)(2)(A)(ii) & (b)(1)(B)
Petitioner asserts he is entitled to waiver of the exhaustion requirement and is entitled to a

19
20

hearing to resolve factual issues related to his argument that he should be excused from the

21

exhaustion requirement as to all claims. See Docket No. 261 at 9.

22

The Court first notes that section 2254(e)(2)(A)(ii) does not establish an exception to the

23

exhaustion requirement, but rather addresses the circumstances under which the Court may hold

24

an evidentiary hearing on a claim that lacked factual development in state court. 28 U.S.C.

25

§ 2254(e)(2) (―If the applicant has failed to develop the factual basis of a claim in State court

26

proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant

27
28

19

Rhines v. Webber, 544 U.S. 269, 277 (2005).
56

1

shows that (A) the claim relies on— . . . (ii) a factual predicate that could not have been previously

2

discovered through the exercise of due diligence; and (B) the facts underlying the claim would be

3

sufficient to establish by clear and convincing evidence that but for constitutional error, no

4

reasonable factfinder would have found the applicant guilty of the underlying offense‖). Nothing

5

in section 2254(e)(2)(A)(ii) relieves the exhaustion requirement; it addresses a different and

6

distinct issue of when an evidentiary hearing on the merits may be held. Moreover, Petitioner has

7

not shown that further factual development is necessary to address his arguments that he should be

8

excused from the exhaustion requirement.
Petitioner has failed to cite any relevant authority showing he is entitled to a hearing on

9

failure to exhaust is therefore DENIED.

12
For the Northern District of California

these grounds; Petitioner‘s request for a hearing for ―resol[ution of] factual issues‖ related to his

11

United States District Court

10

E.

13

Request for Stay Re Proposition 66
Petitioner argues that the Court should stay proceedings pending resolution of Briggs v.

14

Brown (S238309), wherein the California Supreme Court is considering a challenge to Proposition

15

66. Docket No. 261 at 3.

16

Proposition 66, approved by California voters on November 8, 2016, makes several

17

changes to California‘s death penalty implementation and collateral review scheme. Petitioner

18

points to one portion of Proposition 66, California Penal Code section 1509(d), in arguing that he

19

is entitled to a stay. Section 1509(d) states in relevant part: ―An initial petition which is untimely

20

under subdivision (c) or a successive petition whenever filed shall be dismissed unless the court

21

finds, by the preponderance of all available evidence, . . . that defendant is actually innocent of the

22

crime of which he or she was convicted.‖ Petitioner argues that if this provision is upheld, it will

23

render futile further efforts of exhaustion in the California state courts.

24

In Briggs, the petitioners are challenging the implementation of Penal Code section

25

1509(d), arguing that it ―abandons regard for fundamental fairness and integrity in the capital trial

26

and post-conviction process, purely to rush capital defendants to the execution chamber and

27

prevent courts from addressing wrongs. The new procedural bars turn on its head the rationale the

28

California Supreme Court provided in [In re Clark, 5 Cal.4th 750, 776-87 (1993)] for excepting
57

1

claims from procedural default when there is a ‗fundamental miscarriage of justice.‘ ‖20
As noted, Petitioner contends that requiring that he exhaust his claims during the pendency

2
3

of Briggs would be ―unfair‖ because Proposition 66, once enacted, would render his exhaustion

4

petition futile. Id. at 3; Docket No. 269 at 6. As Briggs challenges the implementation of

5

Proposition 66, including Penal Code section 1509(d), Petitioner seeks a stay pending Briggs.
―[T]he power to stay proceedings is incidental to the power inherent in every court to

6
7

control the disposition of the causes on its docket with economy of time and effort for itself, for

8

counsel, and for litigants.‖ Landis v. North American Co., 299 U.S. 248. 254 (1936); Dependable

9

Highway Express v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007). Whether to stay

determining whether a stay is appropriate pending the resolution of another case, a district court

12
For the Northern District of California

proceedings is entrusted to the discretion of the district court. Landis, 299 U.S. at 254. In

11

United States District Court

10

must consider various competing interests, including the possible damage which may result from

13

the granting of a stay; the hardship to the parties if the suit is allowed to go forward; and the

14

orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and

15

questions of law which could be expected to result from a stay. Lockyer v. Mirant Corp., 398 F.3d

16

1098, 1109–10 (9th Cir.2005); CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.1962).

17

Additionally, a district court must consider whether a stay pending resolution of another case is

18

likely to be resolved in a reasonable amount of time because of our duty to adjudicate habeas

19

petitions in a reasonable time frame. Yong v. INS, 208 F.3d 1116, 1119–20 (9th Cir. 2000). The

20

burden is on the movant to show that a stay is appropriate. See Clinton v. Jones, 520 U.S. 681,

21

708 (1997).
Petitioner has failed to carry his burden. As to the potential length of a stay pending the

22
23

resolution of Briggs, Petitioner points only to Briggs‘s briefing schedule.21 While oral argument

24
20

25

See Briggs (S238309), Petition for Writ of Mandate at 35 (accessed on February 1, 2017 at
https://www.dropbox.com/sh/wisbubhyoi2maz7/AAATRdd0FTZms0h-h0zKjpy8a?dl=0).

26

21

27
28

Petitioner contended that the briefing was due by March 20; the Court, however, has determined
that the California Supreme Court entertained replies to amicus briefs until April 6, 2017. The
order was accessed on April 16, 2017 at
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2169445&doc_no
=S238309.
58

1

has been set, neither the parties nor the Court can forecast when the California Supreme Court will

2

ultimately issue a decision on the matter or whether further litigation related to Briggs will ensue.

3

The stay could be lengthy. Petitioner also alleges potential hardship by arguing that the California

4

Supreme Court will ―rubber stamp‖ Penal Code section 1509(d), which would in turn moot his

5

exhaustion petition. See Docket No. 261 at 4. However, this assertion is speculative. Petitioner

6

also fails to offer support for his assumption that Penal Code section 1509(d)‘s ban on successive

7

petitions will be upheld without alternative equitable grounds such as those discussed in In re

8

Clark, 5 Cal.4th at 776-87. Accordingly, Petitioner‘s arguments for a stay are unpersuasive.22
On the other hand, should this Court stay the case until Briggs is decided, and then a ruling

9

Moreover, given the work completed in finalizing the federal petition, it would not take an

12
For the Northern District of California

is issued in Briggs that does not render exhaustion futile, valuable time would have been wasted.

11

United States District Court

10

inordinate amount of work by Plaintiff to commence the exhaustion process in state court. Should

13

Proposition 66 be fully upheld, potentially rendering Petitioner‘s exhaustion petition futile,

14

Petitioner would be able to return to this Court to present his claims and make his argument that

15

Proposition 66 effectively renders the California habeas scheme defective for purposes of

16

exhaustion. In the meantime, Petitioner will have an opportunity to fully present, and perhaps

17

obtain relief on, his claims in state court.
The Court finds that a stay is not warranted under these circumstances; Petitioner‘ request

18
19

is DENIED.
V.

20

CONCLUSION

21

The Petition for Writ of Habeas Corpus is partially unexhausted:

22

Claims 5, 6, 16, 17A, 17B, 17C, 17F, and 17H are fully exhausted.

23
24
25
26
27
28

22

Petitioner alternatively argues this Court should stay proceedings to ensure that the Court has
the opportunity to rule on whether Proposition 66 renders California‘s state habeas proceedings
defective under section 2254(b)(1)(B). See Docket No. 261 at 3 & No. 269 at 5. In support,
Petitioner cites Federal Election Commission v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462
(2007), which discusses whether the federal courts had Article III jurisdiction to hear a nonprofit
agency‘s challenge to a piece of legislation despite the fact that the nonprofit‘s challenge was
effectively mooted prior to the conclusion of litigation. However, this Court is considering
whether to grant Petitioner a stay, not whether it has Article III jurisdiction to entertain a
constitutional challenge to Proposition 66. Federal Election Commission is therefore inapposite.
59

1
2

Claims 3, 4, 8, 9, 12, 15, 17 (including 17D, 17E, and the unlabeled cumulative claim), 18,
and 20 are partially unexhausted.

3

Claims1, 2, 7, 10, 11, 13, 14, and 19 are fully unexhausted.

4

Respondent‘s Motion to Dismiss is DENIED WITHOUT PREJUDICE and may be

5

renewed following the filing of Petitioner‘s motion to dismiss unexhausted claims or request for a

6

Rhines stay.

7

Petitioner‘s Motion for Equitable Relief is DENIED.

8

Petitioner‘s Administrative Motion is GRANTED.

9

Petitioner‘s Motion for Sanctions is DENIED WITHOUT PREJUDICE.

10

pursuant to 28 U.S.C. § 2254(e)(2)(A)(ii) & (b)(1)(B) is DENIED.

12
For the Northern District of California

United States District Court

11

Petitioner‘s request for an evidentiary hearing on the waiver of exhaustion requirements

Petitioner‘s request for a stay until Proposition 66 is certified and no longer stayed is

13

DENIED, but may be subject to review after the California Supreme Court rules on the legality of

14

Proposition 66.

15

Petitioner shall file any motion to dismiss unexhausted claims or request for a Rhines stay

16

within thirty (30) days of this order. Respondent‘s opposition will be due fourteen (14) days

17

following service of Petitioner‘s motion or request, and Petitioner must file any reply within seven

18

(7) days following service of Respondent‘s opposition.

19

This order disposes of Docket Nos. 226, 228, 260, 262, and 274.

20
21

IT IS SO ORDERED.

22
23
24
25

Dated: May 22, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

26
27
28

60