Davis v. Chappell

Filing 44

ORDER by Judge Edward M. Chen Denying 36 Respondent's Motion to Dismiss; and Granting 40 Petitioner's Motion for Stay. (emcsec, COURT STAFF) (Filed on 7/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD ALLEN DAVIS,

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For the Northern District of California

United States District Court

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Petitioner,

DEATH PENALTY CASE

v.
RON DAVIS, Warden, San Quentin State
Prison,

ORDER DENYING RESPONDENT’S
MOTION TO DISMISS; AND
GRANTING PETITIONER’S MOTION
FOR STAY

Respondent.
___________________________________/

(Docket Nos. 36, 40)

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No. C-13-0408 EMC

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Petitioner Richard Allen Davis is a condemned prisoner at California’s San Quentin State

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Prison. Petitioner has filed a habeas petition containing 37 claims. The parties agree that claims 1-

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3, 6, 8-10, 12-17, 19-24, 29, 32-34 and 36 are exhausted, claims 35 and 37 are unexhausted, and

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claims 4-5, 7, 11, 18, 25-28, 30-31 and 33 are partially exhausted. These claims allege, inter alia,

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that: Petitioner was denied the effective assistance of counsel throughout his trial, his representation

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was plagued by conflict of interest, trial counsel failed to adequately prepare his mental health

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experts, the prosecutor committed misconduct, aggravating evidence was improperly admitted, the

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evidence is insufficient to support the conviction, the jury received faulty jury instructions, the trial

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court inadequately responded to a question from the jury, the trial court failed to excuse impaired

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jurors, the trial court improperly restricted the presentation of mitigation evidence, the jury

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committed misconduct, and that the extreme delay between the imposition of the death sentence and

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execution is unconstitutional. Respondent waives exhaustion as to the unexhausted portion of claim

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33. In a motion to dismiss filed on March 2, 2015, Respondent contends that Petitioner’s

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unexhausted/partially exhausted claims must be dismissed and litigation should proceed only on the

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remaining exhausted claims. In a cross-motion for a stay filed on May 14, 2015, Petitioner counters

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that the petition should instead be held in abeyance pending his exhaustion of claims in state court.

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In a reply filed on June 11, 2015, Respondent requests that Petitioner’s motion for a stay be denied,

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and that Petitioner be ordered to file an amended finalized petition containing only exhausted claims.

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For the reasons stated below, Respondent’s motion to dismiss is DENIED and Petitioner’s motion

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for a stay is GRANTED.

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I.

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BACKGROUND

In September 1996, Petitioner was sentenced to death in Santa Clara County Superior Court
following a conviction of first degree murder of 12-year old Polly Klaas, as well as the burglary of

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For the Northern District of California

United States District Court

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her home, kidnaping, an attempted lewd act against her, two counts of false imprisonment, two

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counts of assault with a deadly weapon and three counts of robbery. The California Supreme Court

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affirmed his conviction and death sentence on June 1, 2009. People v. Davis, 46 Cal. 4th 539

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(2009). The United States Supreme Court denied certiorari on January 11, 2010. Davis v.

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California, 558 U.S. 1124 (2010).

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On November 5, 2007, while his direct appeal was pending, Petitioner filed a state habeas

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petition. (ECF Doc. No. 2) The Supreme Court of California denied this petition on January 23,

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2013.

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Petitioner filed a request for appointment of federal habeas counsel and stay of execution in

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this Court on January 29, 2013. His request for a stay was granted and his case was referred to the

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Selection Board for recommendation of counsel. (ECF Doc. No. 4) The Court appointed counsel on

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October 21, 2013. (ECF Doc. No. 8)

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On January 23, 2014, prior to the expiration of the statute of limitations period, Petitioner

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filed a preliminary petition. (ECF Doc. No. 9) On April 9, 2014, the parties filed a joint statement

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wherein Petitioner sought leave to file motions for discovery, evidence preservation and equitable

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tolling. (ECF Doc. No. 17) The Court denied without prejudice Petitioner’s request to file a

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discovery motion, and granted his requests to file motions for evidence preservation and equitable

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tolling. (ECF Doc. No. 19)

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Petitioner filed a motion for equitable tolling on June 30, 2014. This motion was granted in

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part and denied in part on September 15, 2014. Petitioner filed an amended petition on October 21,

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2014, and further amended the petition on January 29, 2015. The instant briefing followed.

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II.

LEGAL STANDARD

Federal courts may not grant a writ of habeas corpus brought by a person in custody pursuant

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to a state court judgment unless “the applicant has exhausted the remedies available in the courts of

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the State.” 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is grounded in principles of

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comity as it gives states the first opportunity to correct alleged violations of a prisoner’s federal

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rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
The Supreme Court follows a rule of “total exhaustion” requiring that all claims in a habeas

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For the Northern District of California

United States District Court

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petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 U.S. 509,

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522 (1982). A district court is permitted, however, to stay a mixed petition to allow a petitioner to

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exhaust his claims in state court without running afoul of the one-year statute of limitations period to

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file for federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”). Rhines v. Weber, 544 U.S. 269, 273-75 (2005). A district court must stay a mixed

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petition if: (1) the petitioner has good cause for his failure to exhaust his claims, (2) the

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unexhausted claims are potentially meritorious, and (3) there is no indication that the petitioner

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intentionally engaged in dilatory tactics. Id. at 278.

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The Supreme Court has not articulated with precision what constitutes “good cause” for

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purposes of granting a stay under Rhines. In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the

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Supreme Court stated in dicta that a “petitioner’s reasonable confusion about whether a state filing

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would be timely will ordinarily constitute ‘good cause’ for him to file in federal court” without

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exhausting state remedies first. More recently, in Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012),

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the Supreme Court held that ineffective assistance of post-conviction counsel may constitute cause

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for overcoming procedural default.

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The Ninth Circuit has clarified that “good cause” for failure to exhaust does not require

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“extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Nonetheless,

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the good cause requirement should be interpreted in light of the Supreme Court’s admonition that

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stays be granted only in “limited circumstances” so as not to undermine AEDPA’s twin goals of

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reducing delays in the execution of criminal sentences and streamlining federal habeas proceedings

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by increasing a petitioner’s incentive to exhaust all claims in state court. Wooten v. Kirkland, 540

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F.3d 1019, 1024 (9th Cir. 2008). A petitioner’s mistaken impression that his counsel included a

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claim in an appellate brief does not qualify as “good cause” for failure to exhaust as such an

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allegation could be raised by any petitioner, rendering stay-and-abeyance orders routine. Id.

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More recently, in Blake v. Baker, 745 F.3d 977, 983 (9th Cir. 2014), the Ninth Circuit held

finding that such a conclusion was consistent with and supported by Martinez. The court found that

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the “good cause element is the equitable component of the Rhines test,” and that “good cause turns

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For the Northern District of California

that “[ineffective assistance] by post-conviction counsel can be good cause for a Rhines stay,”

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United States District Court

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on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to

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justify [the failure to exhaust.]” Id at 982. The petitioner in Blake argued that he failed to exhaust

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his ineffective assistance of trial counsel claim because state post-conviction counsel failed to

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discover evidence that he suffered extreme abuse as a child, as well as organic brain damage and

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psychological disorders. Id. He supported his argument with evidence of his abusive upbringing

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and history of mental illness. In light of this showing, the Ninth Circuit found that the district court

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abused its discretion in denying a stay and remanded the case. Id. at 983-84.

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III.

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DISCUSSION

Respondent moves to dismiss Petitioner’s petition because it contains unexhausted claims.

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Such a dismissal is unwarranted because a mixed petition may be stayed provided that Petitioner

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meets the requirements set forth in Rhines, namely: (1) shows good cause for his failure to exhaust,

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(2) establishes that his claims are potentially meritorious and (3) shows that he did not intentionally

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engage in dilatory tactics. Rhines, 544 U.S. at 273-78. As discussed below, Petitioner meets the

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requirements for a stay.

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A.

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Good Cause
Petitioner contends that a variety of factors establish good cause for his failure to exhaust.

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He asserts that: (1) state post-conviction counsel was ineffective, (2) post-conviction counsel

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labored under a conflict of interest, (3) Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) imposed a

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novel, unforeseen change in the law, and (4) it is not clear that the state courts would find his claims

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procedurally barred. He also asserts that the Court has inherent power to stay this case. Because the

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Court finds that ineffective assistance of post-conviction counsel adequately establishes good cause

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for Petitioner’s failure to exhaust, it will not address Petitioner’s alternate arguments.

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Petitioner alleges that state post-conviction counsel was ineffective for failing to investigate

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and raise the completely and partially unexhausted claims contained in his finalized petition. In

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particular, he asserts that counsel failed to interview mitigation witnesses, such as family and

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friends, who could have testified regarding Petitioner’s family history of physical, substance and

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sexual abuse. Petitioner claims that post-conviction counsel failed to retain expert witnesses to
explore the mitigating effects of his drug and alcohol addiction, his neuropsychological impairments

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For the Northern District of California

United States District Court

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and his Native American background. Additionally, post-conviction counsel allegedly failed to

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present evidence demonstrating that trial counsel were in possession of evidence that could have

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been used to impeach the State’s expert Kathleen O’Meara’s testimony that Petitioner did not suffer

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extensive abuse as a child.

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Petitioner further asserts that post-conviction counsel clearly recognized the need for an

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adequate mitigation investigation. As early as 2005, counsel acknowledged that “[i]t may be that

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renewed efforts to contact Rick’s older brothers, and his mother, are in order, but it is also necessary

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to attempt to contact other relatives who were around during Rick’s early years.” (ECF Doc. No.

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40-1, Exh. 137) Seven months prior to the filing of the state habeas petition however, counsel wrote

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a memo to his investigator, Sanford Glickman, stating that “the more I think about where we stand

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on the investigation I assigned you in the Davis case, the more disappointed I am.” (ECF Doc. No

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40-2, Exh. 138) He complained of Glickman’s failure to obtain signatures on declarations, his lack

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of preparation when interviewing witnesses, and postponement of assignments, resulting in a

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situation where “as a result of the work you [Glickman] have done on this case I have nothing to

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show for it . . . work on the Davis case is simply unacceptable to meet the standards for post-

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conviction capital cases.” Id. Petitioner contends that despite counsel’s recognition of the

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inadequacy of the investigation, he failed to remedy the situation, as none of the necessary

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mitigation investigation was ever conducted.

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Based on its review of the record, the Court finds that Petitioner has advanced a reasonable

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excuse, supported by evidence, to justify his failure to exhaust his claims. See Blake, 745 F.3d 982.

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Petitioner supports his allegations with memos from post-conviction counsel’s files documenting

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failure to conduct an adequate investigation. Petitioner’s showing of post-conviction ineffective

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assistance satisfies the Rhines good cause requirement.

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Respondent faults Petitioner for failing to provide a declaration from post-conviction counsel

fails to provide any authority establishing such a requirement. Respondent cites Burt v. Titlow, 134

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S. Ct. 10, 17-18 (2013), in which the Supreme Court found that the absence of evidence that counsel

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gave constitutionally adequate advice regarding whether to withdraw a guilty plea did not overcome

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For the Northern District of California

“shedding any light on his possible tactical considerations behind his alleged ineffectiveness,” but

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United States District Court

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the strong presumption of counsel’s effectiveness. The Court did not establish a requirement that

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ineffective assistance claims be supported by declarations from counsel. In any event, Petitioner has

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submitted a declaration from post-conviction counsel as an attachment to his reply. (ECF Doc. No.

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43, Exh. 139) The declaration states that post-conviction counsel had no strategic reason for failing

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to interview mitigation witnesses, hire an addiction specialist, hire an expert on Native American

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culture, or to have a thorough neuropsychological evaluation completed. Id.

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Respondent further complains that “not one first time Rhines stay request in a capital case in

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this district has been denied,” and that “this surely cannot be what the Supreme Court meant by the

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concept of ‘limited circumstances’ in Rhines.” (ECF Doc. No. 42 at 9) The definition of good cause

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need not, however, be limited “to only those excuses that arise infrequently.” Blake, 745 F.3d at

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982. In the instant case, Petitioner has demonstrated good cause.

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B.

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Merit of Claims
Petitioner argues that Rhines requires that at least one unexhausted claim be “potentially

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meritorious,” and that one or more of his unexhausted claims meet this requirement. He focuses his

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argument on claims 4, 5, 35 and 37. Respondent contends that Petitioner’s claims are not

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meritorious.

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Under the second prong of the Rhines test, a district court would abuse its discretion if it
were to grant a petitioner a stay when his claims are plainly “meritless.” Rhines, 544 U.S. at 277.

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plainly meritless. See, e.g., Petrosky v. Palmer, No. 3-10-cv-0361, 2013 WL 5278736 *5 (D. Nev.

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Sept. 16, 2013). Here, Petitioner has filed a lengthy petition containing allegations that are not

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vague, conclusory or patently frivolous. For example, in claim 4, Petitioner alleges that he was

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denied his right to conflict-free and effective legal representation at all stages of his trial

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proceedings. Claim 4 contains seven subclaims, and is supported by numerous exhibits and citations

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to controlling caselaw. Claim 5 alleges, in detail, that trial counsel were ineffective for failing to

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properly select and prepare mental health experts to testify on Petitioner’s behalf. Claim 35 alleges

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that appellate counsel was ineffective. Claim 37 alleges that Petitioner’s constitutional rights were

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violated by the State’s presentation of fundamentally unreliable forensic evidence, specifically hair

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For the Northern District of California

This rule has been interpreted to mean that a stay is appropriate as long as at least one claim is not

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United States District Court

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comparison and fiber analysis. In all of these claims, Petitioner has articulated cognizable

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constitutional claims supported by relevant legal authority, and has presented such evidence and

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offers of proof as are presently available to him. Based on its review of the record, the Court cannot

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conclude that Petitioner’s unexhausted claims are plainly meritless.

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C.

Absence of Dilatory Tactics

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

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

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petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. The Court already found

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that Petitioner has been pursuing his rights diligently when it granted equitable tolling. (ECF Doc.

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No. 25) Since then, Petitioner has been following this Court’s Habeas Local Rules in litigating his

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petition. There is no further evidence that Petitioner has engaged in dilatory litigation tactics to date.

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Petitioner satisfies the third prong of Rhines.

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In addition, district courts have inherent power to control their dockets and stay proceedings.

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Ryan v. Gonzalez, 133 S. Ct. 696, 708 (2013), quoting Schriro v. Landrigan, 550 U.S. 465, 473

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(2007) (“the decision to grant a stay . . . is ‘generally left to the sound discretion of district

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courts.’”). Here, granting Petitioner a stay promotes the interest of judicial economy, as it will

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eliminate the possibility of piecemeal litigation. Calderon v. United States District Court (Taylor),

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134 F.3d 981, 987-88 (9th Cir. 1998). A stay will also promote comity, as it will provide the state

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court the opportunity to rule on Petitioner’s claims first. Rose, 455 U.S. at 518. These factors

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strongly favor the issuance of a stay.

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IV.

CONCLUSION

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For the above-mentioned reasons, the Court finds as follows:

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Respondent’s motion to dismiss is DENIED;

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2.

Petitioner’s motion for a stay is GRANTED;

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3.

Counsel for Petitioner shall file an exhaustion petition in state court within 90 days of

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the date of this Order;
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One hundred and twenty days after the entry of this Order, and every 90 days

thereafter until proceedings in his state exhaustion case are completed, Petitioner shall serve and file

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For the Northern District of California

United States District Court

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in this Court a brief report updating the Court and the parties on the status of his pending state

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habeas action. No later than 30 days after proceedings in his state case are completed, Petitioner

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shall serve and file notice that proceedings are completed.

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This order disposes of Docket Nos. 36 and 40.

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IT IS SO ORDERED.

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Dated: July 24, 2015

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_________________________
EDWARD M. CHEN
United States District Judge

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