Glaze v. Ducart
Filing
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ORDER by Judge James Donato granting in part and denying in part 17 Motion to Dismiss. (lrcS, COURT STAFF) (Filed on 1/16/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JASON WESLEY GLAZE,
Petitioner,
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United States District Court
Northern District of California
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Case No. 16-cv-05144-JD
ORDER RE: MOTION TO
DISMISS
v.
Re: Dkt. No. 17
C. DUCART,
Respondent.
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Jason Glaze, a pro se state prisoner, has brought a habeas petition under 28 U.S.C. § 2254.
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The petition alleges that: (1) there was insufficient evidence to support his conviction for assault
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with a deadly weapon; (2) the trial court erred in instructing on the mutual combat exception to
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self-defense with California Criminal Jury Instruction (“CALCRIM”) 3471; and (3) the trial court
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erred in giving the mutual combat instruction when it failed to instruct the jury that the mutual
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combat exception only applies if the defendant starts or helps start the fight and instead stated the
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mutual combat exception applies if defendant agrees to continue the fight and failed to instruct
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that the exception requires that each individual defendant personally agree to fight. Respondent
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has filed a motion to dismiss on the grounds that two of the claims are unexhausted and
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procedurally defaulted. Petitioner has filed an opposition.
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EXHAUSTION
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An application for a federal writ of habeas corpus filed by a prisoner who is in state
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custody pursuant to a judgment of a state court may not be granted unless the prisoner has first
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exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by
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presenting the highest state court available with a fair opportunity to rule on the merits of each and
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every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v.
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Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his or her
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habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
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A petitioner fully and fairly presents a claim to the state courts “if he presents the claim (1)
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to the correct forum; (2) through the proper vehicle; and (3) by providing the factual and legal
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basis for the claim. Full and fair presentation additionally requires a petitioner to present the
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substance of his claim to the state courts, including a reference to a federal constitutional
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guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d
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573, 582 (9th Cir. 2009) (citations omitted).
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All three of these claims were presented to the California Court of Appeal. Petition at 858. The California Court of Appeal denied these claims. People v. Glaze, No. A139729, 2015
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United States District Court
Northern District of California
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WL 6948838 (Cal. Ct. App. Nov. 10, 2015). The petition to the California Supreme Court only
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raised two claims: (1) the trial court erred in instructing the jury using CALCRIM 3472; and (2)
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there was insufficient evidence to support the conviction for assault with a deadly weapon.
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Petition at 110. The California Supreme Court denied the petition for review. Motion to Dismiss
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Ex. A. No state habeas petitions were filed.
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Petitioner’s claim that there was insufficient evidence to support the conviction for assault
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with a deadly weapon was fully exhausted. Petitioner’s remaining two federal claims regarding
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jury instructions and CALCRIM 3471 were not presented to the California Supreme Court. The
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only other claim presented to the California Supreme Court was regarding CALCRIM 3472,
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which was not raised in this federal petition. Petitioner has presented a mixed petition.
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The general rule is that a federal district court must dismiss a federal habeas petition
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containing any claim for which state remedies have not been exhausted. See Rose v. Lundy, 455
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U.S. 509, 522 (1982). When faced with a post-AEDPA mixed petition, the Court must sua sponte
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inform the habeas petitioner of the mixed petition deficiency and provide him an opportunity to
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amend the mixed petition by striking unexhausted claims as an alternative to the Court dismissing
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the petition. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v. Weber, 544
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U.S. 269, 277 (2005)) (court’s erroneous dismissal of mixed petition entitled petitioner to
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equitable tolling of one-year AEDPA statute of limitations from the date the first habeas petition
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was dismissed until the date the second habeas petition was filed). Petitioner may also seek to
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stay the petition while he exhausts the remaining claims. However, respondent argues that the
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two unexhausted claims are procedurally defaulted pursuant to the invited error doctrine and it
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would serve no purpose to allow petitioner to exhaust the two claims in state court.
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PROCEDURAL DEFAULT
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A federal court will not review questions of federal law decided by a state court if the
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decision also rests on a state law ground that is independent of the federal question and adequate
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to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In cases in which
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a state prisoner has defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner
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United States District Court
Northern District of California
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can demonstrate cause for the default and actual prejudice as a result of the alleged violation of
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federal law, or demonstrate that failure to consider the claims will result in a fundamental
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miscarriage of justice. Id. at 750. To show cause, a petitioner must point to some objective factor
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external to the defense that prevented him from complying with the state procedural rule. Murray
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v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must show that the errors at
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his trial worked to his actual and substantial advantage, infecting his entire trial with errors of a
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constitutional dimension. White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989).
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The invited error doctrine is recognized as a valid procedural default that bars federal
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habeas review. See, e.g., Leavitt v. Arave, 383 F.3d 809, 832 (9th Cir. 2004) (recognizing that
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invited error doctrine may be a valid basis for procedural default under habeas review where the
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state court clearly and expressly invoked the invited error doctrine).
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The California Court of Appeal noted that trial counsel requested CALCRIM 3471, the
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basis for petitioner’s two jury instruction claims in this federal petition. Glaze, 2015 WL
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6948838, at *14-15. The state court held that “[w]hen defense counsel makes a ‘conscious
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deliberate tactical choice’ to request an instruction, any error in the giving of the instruction is
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invited and cannot be raised on appeal.” Id. at 14. Because the trial court issued petitioner’s
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requested jury instruction, he is not now entitled to claim that the issuance of the instruction was
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an error. It is irrelevant that the California Court of Appeal also rejected petitioner’s claims on the
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merits. A federal court must respect a valid procedural bar that was clearly imposed even if the
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state court also addressed the merits of the claim. Harris v. Reed, 489 U.S. 255, 263-64, n.10
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(1989).
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Petitioner has not presented any arguments concerning cause and prejudice, nor has he
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argued that he received constitutionally ineffective assistance of counsel to show cause for the
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procedural default. See McCleskey v. Zant, 499 U.S. 467, 494 (1991). The Court notes that
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respondent did not explicitly set forth the cause and prejudice standard; therefore, petitioner will
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be provided an opportunity to address it.
Petitioner will be given the opportunity to proceed in one of two ways. He may indicate
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that he only wishes to proceed on the one exhausted claim regarding the sufficiency of the
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United States District Court
Northern District of California
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evidence and the petition will continue solely on that claim and the others will be dismissed. Or,
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if he wishes to also proceed with one or both of the unexhausted claims, petitioner may present
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arguments to overcome the procedural default and also file a motion to stay addressing the factors
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set forth in Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the United States Supreme Court
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found that a stay and abeyance of a mixed federal petition should be available only in the limited
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circumstance that good cause is shown for a failure to have first exhausted the claims in state
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court, that the claim or claims at issue potentially have merit and that there has been no indication
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that petitioner has been intentionally dilatory in pursuing the litigation. Id. at 277-78.1
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CONCLUSION
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1. Respondent’s motion to dismiss (Docket No. 17) is GRANTED IN PART as discussed
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above.
2. Within twenty eight (28) days of service of this order, petitioner must indicate if he
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wishes to only proceed with the exhausted claim, or if he wishes to also proceed with one or both
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of the unexhausted claims he must present arguments regarding cause and prejudice and file a
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motion stay.
3. Respondent need not do anything until ordered by the Court.
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If petitioner overcomes the procedural default and seeks to stay the case, he must also ensure that
he exhausts federal claims, not merely claims that concern state law.
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4. Petitioner is reminded that all communications with the Court must be served on
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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep
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the Court informed of any change of address and must comply with the Court's orders in a timely
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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
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1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
Dated: January 16, 2018
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JAMES DONATO
United States District Judge
United States District Court
Northern District of California
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JASON WESLEY GLAZE,
Case No. 16-cv-05144-JD
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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C. DUCART,
Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
United States District Court
Northern District of California
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That on January 16, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Jason Wesley Glaze
AR8036
Pelican Bay State Prison
PO Box 7500
Crescent City, CA 95532
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Dated: January 16, 2018
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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