Lynch v. Davis
Filing
73
ORDER by Judge Edward M. Chen Denying 68 Petitioner's Motion to Clarify Order on Respondent's Motion to Dismiss Petition for Failure to Exhaust State Remedies. Petitioner's Motion due by 2/15/2021. Respondent's Response due by 3/1/2021. Petitioner's Reply due by 3/8/2021. (emcsec, COURT STAFF) (Filed on 2/1/2021)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
FRANKLIN LYNCH,
Petitioner,
10
United States District Court
Northern District of California
11
DEATH PENALTY CASE
Respondent.
8
9
Case No. 18-cv-00444-EMC
ORDER DENYING PETITIONER’S
MOTION TO CLARIFY ORDER ON
RESPONDENT’S MOTION TO
DISMISS PETITION FOR FAILURE
TO EXHAUST STATE REMEDIES
v.
RON DAVIS,
12
Docket No. 68
13
14
15
Petitioner has filed a Motion to Clarify the Court’s order of November 17, 2020. That
16
order rejected Petitioner’s request for an expedited summary judgment review of one or more of
17
the exhausted habeas claims in his mixed petition and instructed him to choose which of his two
18
proposed alternative stay and abeyance remedies he wishes to pursue or, alternatively, delete his
19
unexhausted claims and proceed with federal review of his exhausted claims. Petitioner posits that
20
the clarification he seeks “would permit [him] to identify which claims would require state court
21
exhaustion and thereby to assess the Court’s option properly.” Docket No. 68 at 2. In order to
22
provide such clarification, Petitioner requests that the Court “order briefing on whether Martinez
23
v. Ryan, 566 U.S. 1 (2012), permits Petitioner to present to this Court for merits adjudication—
24
without first seeking to present the claims to state court—his [unexhausted] claims of trial counsel
25
ineffectiveness[.]” Docket No. 68 at 6. For the reasons that follow, the Court declines to order
26
additional briefing on Martinez and, except to the extent this order may further clarify matters for
27
Petitioner, DENIES the motion to clarify.
28
1
The Court’s previous order needs no further clarification. The order marks a
straightforward resolution of the singular dispute posed by Petitioner’s response to Respondent’s
3
motion to dismiss his mixed petition. Petitioner had argued that, rather than dismissal of the
4
petition, he should be permitted to invoke the stay-and-abeyance procedure of Kelly v. Small, 315
5
F.3d 1063 (9th Cir. 2003), which, he asserted, would permit him to proceed with expedited
6
summary judgment proceedings while he pursued exhaustion of his unexhausted claims.
7
Petitioner also discussed the alternative stay-and-abeyance remedy potentially available to him
8
pursuant to Rhines v. Weber, 544 U.S. 269 (2005), which, if applicable, would preclude the
9
dismissal of his petition even if it did not provide him with any opportunity for expedited federal
10
review. He thus proposed two outcomes for Respondent’s motion to dismiss: an order permitting
11
United States District Court
Northern District of California
2
him to amend his petition pursuant to Kelly or, “[i]n the alternative, should the Court determine
12
that the Kelly procedure is not advised here and would not hold the potential to expedite the
13
conclusion of these proceedings, then . . . Petitioner should be afforded leave to move the Court
14
under Rhines, 544 U.S. 269, for an order staying the case and holding it in abeyance to permit
15
state court exhaustion.” Docket No. 63 at 7. The Court’s order of November 17 found no
16
precedent for Petitioner’s proposed expeditious summary judgment proceedings under Kelly and
17
concluded that, should he proceed under Kelly, this matter would be stayed and held in abeyance
18
pending state court exhaustion. Docket No. 67 at 4-5. However, the order further noted that the
19
stay-and-abeyance procedures of both Kelly and Rhines were available to Petitioner and instructed
20
him to choose which procedure he wished to pursue and file an appropriate motion. Id. at 6-7.
21
Thus, the Court’s prior order plainly aligned with Petitioner’s second proposed outcome for
22
Respondent’s motion to dismiss and placed the onus on Petitioner to choose how he would like to
23
proceed with his petition.
24
Although Petitioner has effectively acknowledged that there is a state court remedy
25
available to him to justify proceeding under Kelly or Rhines, he now asserts he can move forward
26
here without returning to state court. He asserts that if he can show cause and prejudice for a
27
procedural default of his ineffective assistance of trial counsel claims, then he need not exhaust
28
those claims. Docket No. 68 at 2. In so arguing, Petitioner conflates exhaustion with procedural
2
1
2
3
4
5
6
7
8
default. This Court previously warned against this error in another case:
Petitioner also argues that the Court should excuse the exhaustion
requirement because he can show cause and prejudice for any
procedural default. Petitioner appears to conflate the concepts of
procedural default and exhaustion, which are related, but ultimately
different, inquiries. On one hand, the exhaustion doctrine requires a
petitioner to exhaust any available state remedies. 28 U.S.C.
§2254(b). On the other, procedural default places constraints the
district court’s ability to consider the merits of a claim. Sawyer v.
Whitley, 505 U.S. 333, 338 (1992). Accordingly, a showing of cause
and prejudice for procedural default has no direct bearing on
exhaustion; it is relevant only to whether a federal court may reach
the merits of a procedurally-defaulted claim. See Sawyer, 505 U.S.
at 338.
Stanley v. Ayers, Civ. No. 3:07-cv-04727-EMC, Docket No. 276 at 18-19 (May 22, 2017). See
10
also Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (citations omitted) (“Exhaustion
11
United States District Court
Northern District of California
9
and procedural default are distinct concepts in the habeas context. The two doctrines developed
12
independently and on different grounds, apply in different situations, and lead to different
13
consequences. . . . The exhaustion doctrine applies when the state court has never been presented
14
with an opportunity to consider a petitioner’s claims and that opportunity may still be available to
15
the petitioner under state law.”).
16
Petitioner maintains that Martinez somehow “obviates” the need to exhaust claims. See,
17
e.g., Docket No. 63 at 2 However, the question resolved in Martinez was straightforward:
18
“whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective
19
assistance at trial may provide cause for a procedural default in a federal habeas proceeding.” 566
20
U.S. at 9. The Supreme Court answered that question in the affirmative. Id. at 17. The Supreme
21
Court did not hold that ineffective assistance of counsel in an initial collateral review proceeding
22
obviates the obligation to exhaust a claim of ineffective assistance of trial counsel. Indeed,
23
Martinez had nothing to do with the exhaustion requirement, as the petitioner in that case
24
exhausted his ineffective assistance of trial counsel claims in the state courts; the state court found
25
the claims barred by Arizona procedural rules. Id. at 7-8. The federal courts later determined that
26
state procedural bar was adequate and independent to support a finding of procedural default. Id.
27
28
To be clear, the answer to Petitioner’s question of “exactly which claims would require
state court exhaustion” is simple: he must exhaust any claims for which there may be an available
3
1
state court remedy. 28 U.S.C. § 2254(b)(1)(A). Petitioner has not exhausted his remedies if he
2
has the right to raise, “by any available procedure,” his claims in the state courts. § 2254(c).
3
Furthermore, because of the comity concerns underlying the exhaustion requirement, this Court is
4
obliged to exercise “‘a strong presumption in favor of requiring the prisoner to pursue his
5
available state remedies.’” Castille v. Peoples, 489 U.S. 346, 349 (1989) (quoting Granberry v.
6
Greer, 481 U.S. 129, 131 (1987)). Thus, any uncertainty about whether there is a potential state
7
court remedy—that is, whether Petitioner has the right to raise an issue in the state court by any
8
available procedure—must be resolved in favor of requiring exhaustion.
9
There are compelling reasons to conclude that Petitioner potentially has a state court
remedy available to him and that, consequently, his unexhausted claims are not yet procedurally
11
United States District Court
Northern District of California
10
defaulted and must be exhausted. For instance, Petitioner asserts that California’s timeliness rule
12
bars one or more of his unexhausted claims. See Docket No. 68 at 4; Docket No. 72 at 4 (citing In
13
re Reno, 55 Cal.4th 428, 452 (2012)). However, California’s timeliness rule is not inflexible.
14
Even if a claim is presented after “substantial delay,” it may nevertheless be heard “on its merits if
15
the petitioner can demonstrate good cause for the delay.” In re Reno, 55 Cal.4th at 460 (emphasis
16
in original). The ineffective assistance of habeas corpus counsel is a circumstance that can
17
provide “good cause” for a delay in the application of California’s timeliness rule. Id. at 463-64.
18
In addition, even in the absence of good cause for any substantial delay, a claim can be considered
19
on its merits if the petitioner meets any of four “narrow exceptions,” including, as pertinent here,
20
actual innocence. Id. at 460. Petitioner concedes that his petition includes a claim that he is
21
actually innocent. Docket No. 68 at 4-5.
22
In addition, Petitioner concedes that there remains substantial uncertainty surrounding the
23
application of Proposition 66’s provisions prohibiting successive habeas corpus petitions in
24
California’s state courts. Docket No. 72 at 4. Finally, even if Petitioner’s exhaustion petition
25
were found to be a prohibited successive petition, Petitioner once again concedes that there is an
26
exception to the prohibition on successive petitions for cases of actual innocence. Docket No. 68
27
at 4-5. In sum, there are substantial reasons to conclude that, notwithstanding his assertions of
28
procedural bars, Petitioner has a procedure available to him to exhaust his claims.
4
As exhaustion is a requirement distinct from an assessment of cause for procedural default,
1
2
Petitioner must reduce his federal petition entirely to claims which are exhausted or which cannot
3
be exhausted before this Court will opine on whether any of his remaining claims are procedurally
4
defaulted and, if so, whether Martinez provides him with cause for the procedural default of such
5
claims.
Petitioner’s reply brief on his Motion to Clarify appears to inject, for the first time, his
7
argument that he should be excused from the exhaustion requirement pursuant to the statutory
8
exception of § 2254(b)(1)(B)(ii), due to “extraordinary delay” in California’s capital post-
9
conviction review process. See Docket No. 72 at 4-5. The time to make such an argument in good
10
faith was in response to Respondent’s motion to dismiss the petition for failure to exhaust, not in a
11
United States District Court
Northern District of California
6
reply brief in support of a motion seeking clarification of the Court’s previous order. If Petitioner
12
now wishes to argue that, rather than exhausting pursuant to Kelly or Rhines, he need not exhaust
13
his claims because California’s post-conviction review process is ineffective to protect his rights,
14
then it is incumbent upon him to raise that argument at a time and in a format that permits
15
Respondent to challenge his argument. Petitioner has failed to do so and, consequently, his
16
argument will not be entertained by the Court at this time.
17
CONCLUSION
Petitioner has presented a mixed petition containing exhausted and unexhausted claims.
18
19
Martinez does not “obviate” or “alleviate” his obligation to exhaust his unexhausted claims. The
20
Court reiterates that Petitioner has distinct stay-and-abeyance mechanisms potentially available to
21
him that will allow him to exhaust his claims in the state courts without the necessity of dismissing
22
his mixed petition. Petitioner is afforded a final opportunity to file an appropriate motion
23
indicating how he wishes to address the exhaustion issues raised by Respondent’s motion to
24
///
25
///
26
///
27
///
28
///
5
1
dismiss and discussed in this order and in the Court’s previous order. Petitioner shall file such
2
motion on or before February 15, 2021. Respondent shall file a response to petitioner’s motion on
3
or before March 1, 2021. Petitioner may file a reply on or before March 8, 2021.
4
This order disposes of Docket No. 68.
5
6
IT IS SO ORDERED.
7
8
Dated: February 1, 2021
9
10
United States District Court
Northern District of California
11
______________________________________
EDWARD M. CHEN
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?