Boyette v. Chappell

Filing 85

ORDER DENYING WITHOUT PREJUDICE 79 MOTION TO LIFT STAY AND EXCUSE EXHAUSTION by Judge William H. Orrick. (jmd, COURT STAFF) (Filed on 1/29/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAURICE BOYETTE,
Petitioner,

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v.

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RON BROOMFIELD,
Respondent.

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United States District Court
Northern District of California

Case No. 13-cv-04376-WHO
ORDER DENYING WITHOUT
PREJUDICE MOTION TO LIFT STAY
AND EXCUSE EXHAUSTION
Re: Dkt. No. 79

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INTRODUCTION

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Petitioner Maurice Boyette has filed a motion to excuse his obligation to exhaust claims in

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state court. He requests that I lift the federal stay of his proceedings and reinstate the litigation of

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all of the claims contained in his federal habeas petition even though several of those claims are

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still pending in state court as part of his second state habeas petition. Boyette argues that it would

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be futile to wait for the state courts to complete their corrective process because delays have

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rendered that process unavailable or ineffective under 28 U.S.C. § 2254(b)(1)(B). Respondent

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opposes Boyette’s request. For the reasons discussed below, Boyette’s motion is DENIED

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without prejudice to renew this motion in a year if the state courts have not begun reviewing his

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petition.

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BACKGROUND
In 1993, Boyette was convicted in Alameda County Superior Court of the first-degree

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murders of Gary Carter and Annette Devallier. Evidence at trial established that Boyette was a

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bodyguard for a drug dealer named Antoine Johnson. Johnson learned that Carter and Devallier

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had allegedly stolen rock cocaine and cash from a house Johnson maintained. Boyette

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accompanied Johnson to the house, confronted Carter and Devallier and in the ensuing melee, shot

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and killed both at pointblank range. The jury found true the special circumstance allegation that

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Boyette committed a multiple murder, and sustained the enhancement allegation that he used a

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firearm in the commission of the murders. Boyette was also convicted of being a felon in

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possession of a firearm. On March 25, 1993, the jury sentenced him to death. The California

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Supreme Court affirmed Boyette’s conviction and death sentence on direct appeal. People v.

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Boyette, 29 Cal. 4th 381, 403 (2002), modified (Feb. 11, 2003), rehearing denied (Feb. 11, 2003).

United States District Court
Northern District of California

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Boyette filed a state habeas petition on October 19, 2000. On November 16, 2006, the

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California Supreme Court issued an Order to Show Cause limited to his claims for relief based on

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juror bias and misconduct. (AG022329) An evidentiary hearing with respect to these claims was

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held in Alameda County Superior Court on November 15-17, 2010. The referee presiding over

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the hearing issued his report to the California Supreme Court on December 1, 2010.

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On May 30, 2013, the California Supreme Court adopted the referee's findings and ruled

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against Boyette on his jury bias and misconduct claims. On August 28, 2013, the California

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Supreme Court filed an order denying the remainder of the claims in petitioner's state habeas

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petition. Petitioner filed a federal habeas petition on January 5, 2015. (ECF Doc. No. 23) On

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June 9, 2016, petitioner’s federal proceedings were stayed to allow him to return to state court to

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exhaust unexhausted claims. (ECF Doc. No. 51)

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On November 24, 2016, Boyette filed his exhaustion petition in the California Supreme

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Court. Prior to that filing, the California electorate passed Proposition 66, which made changes to

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the state’s capital habeas procedures. Under Proposition 66, capital habeas petitions may be

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initiated in state superior courts and any pending habeas petitions can be transferred to the superior

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court in which trial was held. Proposition 66 became effective on October 5, 2017, following

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review by the California Supreme Court in Briggs v. Brown, 3 Cal. 5th 808 (2017).

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On May 22, 2019, the California Supreme Court transferred Boyette’s exhaustion petition

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to the Alameda County Superior Court. On May 10, 2021, the Alameda County Superior Court

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denied his claims on procedural grounds and on the merits. Boyette filed his notice of appeal on

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June 4, 2021, and the record on appeal was filed on August 26, 2021. The following day, the

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Court of Appeal entered an order staying the case due to the lack of appropriated funds to
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compensate counsel. That order noted Boyette’s right to petition the California Supreme Court for

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compensation, or to file a motion to lift the stay “based on any other circumstances that would

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allow this appeal to proceed.” (ECF Doc. No. 79, Ex. B). Boyette filed a motion to compensate

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counsel in the California Supreme Court on January 20, 2022. That request was denied on March

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23, 2022. No further action has occurred in the state courts. This briefing followed.
LEGAL STANDARD

United States District Court
Northern District of California

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

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remedies with respect to each claim. 28 U.S.C. '2254(b); Picard v. Connor, 404 U.S. 270 (1971).

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The exhaustion doctrine rests on principles of comity and federalism. Rose v. Lundy, 455 U.S.

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509, 515 (1982). Exhaustion is required to: (1) protect the state court's role in the enforcement of

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federal law; (2) prevent disruption of state court proceedings; and (3) reduce piecemeal litigation.

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Id. at 518-20.

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The United States Supreme Court has explained that “state prisoners must give the state

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courts one full opportunity to resolve any constitutional issues by invoking one complete round of

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the State's established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845

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(1999). See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“prisoner must ‘fairly present’ his

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claim in each appropriate state court (including a state supreme court with powers of discretionary

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review”)); Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (“petitioner satisfies the

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exhaustion requirement by fairly presenting the federal claim to the appropriate state courts

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(plural) in the manner required by the state courts”). Additionally, state prisoners must “file

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petitions for discretionary review when that review is part of the ordinary appellate review

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procedure.” Id. at 847.

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Under 28 U.S.C. ' 2254(b)(1)(B), there are two exceptions to the exhaustion requirement.

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A petitioner is not required to present a claim in state court if “(i) there is an absence of available

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State corrective process; or (ii) circumstances exist that render such process ineffective to protect

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the rights of the applicant.” A state corrective process is unavailable if “there is no opportunity to

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obtain redress in state court.” Ducksworth v. Serrano, 454 U.S. 1, 3 (1981). It is ineffective if it is

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“so clearly deficient as to render futile an effort to obtain relief.” Id.
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DISCUSSION

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United States District Court
Northern District of California

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Boyette argues that he should be excused from the exhaustion requirement because the

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state corrective process under Proposition 66 is unavailable or ineffective. He asserts that the state

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has failed to approve and allocate funds for the appointment and compensation of appellate

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counsel, leaving him indefinitely mired in the state Court of Appeal. Respondent concedes that

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the state has not yet established a system for the allocation of funds to compensate appellate

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counsel under Proposition 66. He argues, however, that appellate review of state habeas cases is

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still occurring in some instances where petitioners are represented by private counsel or by a

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Federal Public Defender Office. More importantly, he asserts that Boyette has failed to

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demonstrate that the delay in obtaining review in his case is so excessive that it renders state

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remedies unavailable or ineffective under ' 2254(b)(1)(B).

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Inordinate delay in state-court collateral proceedings may excuse the exhaustion

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requirement for petitioners seeking federal habeas relief. Jackson v. Duckworth, 112 F.3d 878,

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881 (7th Cir. 1996). It is not clear, however, how long of a delay warrants such excusal. See, e.g.,

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Barker v. Wingo, 407 U.S. 514, 521 (1972) (in context of right to speedy trial, difficult to

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“definitely say how long is too long in a system where justice is supposed to be swift but

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deliberate.”)

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Boyette cites Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990), for the proposition that

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excessive delay in the postconviction process can render the process ineffective to protect the

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rights of the petitioner. In Coe, the Ninth Circuit considered whether California appellate courts’

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delays in deciding a direct appeal of a criminal conviction rendered the state’s corrective process

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ineffective. The court held that, “since excessive delay in obtaining an appeal may constitute a

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due process violation, a prisoner need not fully exhaust his state remedies if the root of his

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complaint is his inability to do so.” Id. at 530-31. The court adopted the four-factor test of Barker

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to examine whether a state court’s delay warrants dispensing with the exhaustion requirement. Id.

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at 531. Those factors are: a) length of delay; b) reason for delay; c) petitioner’s assertion of his

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right; and d) prejudice to the petitioner. Id. at 531-32. The court further highlighted Barker’s

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admonition about the weighing of these factors, stressing that none of the four factors are regarded
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as “‘either a necessary or sufficient condition to the finding’” that delay has rendered a state

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court’s corrective process ineffective. Id. at 532 (quoting Barker, 407 U.S. at 533). “‘Rather, they

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are related factors and must be considered together with such other circumstances as may be

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relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult

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and sensitive balancing process.’” Id. (quoting Barker, 407 U.S. at 533). Ultimately, the court

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determined that the four-year delay in Coe, in conjunction with other factors cited in Barker, rose

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to the level of a due process violation. Id. at 532.

United States District Court
Northern District of California

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With respect to the first Barker factor, delay, petitioner fails to show at this time that the

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two and a half years delay in his case is so excessive that it renders state remedies unavailable or

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ineffective under Section 2254(b)(1)(B). In this district, a delay of two years and ten months has

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been found insufficient to excuse exhaustion. See Ashmus v. Davis, No. 93-CV-0394 TEH, 2017

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WL 2876842 at *2 (N.D. Cal. July 6, 2017) (no statutory exception to exhaustion where

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petitioner’s capital exhaustion petition has been pending for two years and ten months); see also

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Majors v. Cullen, 2:99-cv-00493-KJN (E.D. Cal. March 26, 2010) (four-year delay in California

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Supreme Court’s consideration of lengthy capital habeas petition was not unusual or unjustified);

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Letner v. Broomfield, 18-cv-01459-JLT, 2022 WL 10626051 (E.D. Cal. Oct. 18, 2022)

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(petitioner’s motion to excuse exhaustion proceedings denied where Tulare County Superior Court

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failed to rule on exhaustion petition within proscribed 60-day timeline, resulting in a ‘less than

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two year delay’ from the time petition was filed). In Coe itself, the Ninth Circuit looked to

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comparable Second Circuit cases in which due process violations were established based on delays

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of three years, five years, six years and over eight years, but rejected the contention that a delay of

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four years, “standing alone,” is sufficient to excuse exhaustion. 922 F.2d at 531.

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The second and third Coe factors, the reason for the delay and the defendant’s assertion of

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his right, weigh in favor of Boyette. By failing to allocate funds for the appointment and

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compensation of appellate counsel under Proposition 66, the state is responsible for the delay in

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Boyette’s ability to obtain review of his exhaustion petition. Boyette, in turn, has been diligent in

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seeking such review. Boyette did not present any argument regarding the fourth factor, prejudice

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to defendant.
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Overall, the balancing of Coe factors does not tip in favor of petitioner today. Proposition

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66 was enacted to streamline the post-conviction process in state courts. The state courts must be

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afforded a reasonable opportunity to apply this statutory scheme before the federal courts decree

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the entire effort futile, dilatory or ineffective. That said, while some grace is due to the state

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courts, such grace is not without limits. It appears that Boyette is bearing the brunt of the delay.

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If the state courts are continuing to delay review of his petition a year from now, Boyette is invited

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to update and re-file this motion to lift stay and excuse exhaustion on the grounds that the delay is

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rendering California’s process unavailable or ineffective.
CONCLUSION

United States District Court
Northern District of California

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For the foregoing reasons, Boyette’s motion is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: January 29, 2024

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William H. Orrick
United States District Judge

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