Shelton v. Marshall et al

Filing 39

ORDER by Judge Hamilton denying 29 Motion to Dismiss (pjhlc3, COURT STAFF) (Filed on 3/15/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

OAKLAND DIVISION

8
9
JOSEPH P. SHELTON,
Petitioner,

No. C 10-01100 PJH

11
For the Northern District of California

United States District Court

10
ORDER DENYING MOTION
TO DISMISS

vs.
12
JOHN C. MARSHALL, Warden,
13
Respondent.
14

/

15
Currently before the court is respondent’s motion to dismiss. For the reasons below,
16
the court DENIES the motion and sets a briefing schedule on the petition.
17
BACKGROUND
18
In 1981, a Mendocino County jury convicted petitioner Joseph Shelton (“Shelton”) of
19
one count of first degree murder and one count of second degree murder under California
20
Penal Code § 187, two counts of kidnapping under California Penal Code § 211, two counts
21
of robbery under California Penal Code § 211, one count of possession of a machine gun
22
under California Penal Code § 12022, and one count of possession of a silencer under
23

California Penal Code.1 The jury also found true special circumstances that fixed the

24
penalty for the first degree murder at life without the possibility of parole. The judge
25
sentenced Shelton to prison for forty years to life. The California Court of Appeal affirmed
26
the conviction but modified Shelton’s sentence to include the possibility of parole. The
27
28
1

This followed a change of venue from the Lassen County Superior Court.

1

California Supreme Court denied review.

2

On November 8, 1991, Shelton filed pro se his first habeas case in this court, which

3

was assigned to the Honorable Fern Smith. See Case No. C 91-3948 FMS. In that case,

4

Shelton raised two claims: (1) that statements that he made to law enforcement officers in

5

February 1981 should have been suppressed due to the delay in arraigning him; and (2)

6

the trial court erred in failing to instruct the jury on diminished capacity where kidnapping

7

was the felony on which the felony-murder instruction was based.

had procedurally defaulted the second claim. Judge Smith afforded Shelton thirty days to

10

demonstrate cause and prejudice for the default, and advised him that if he failed to do so,

11
For the Northern District of California

On November 12, 1992, Judge Smith denied the first claim, but noted that Shelton

9

United States District Court

8

the claim would be dismissed. Instead of doing so, Shelton filed a notice of appeal and a

12

request for a certificate of probable cause. On December 2, 1992, Judge Smith

13

subsequently denied the request for a certificate of probable cause, noting that an appeal

14

was not timely until his December 12, 1992 deadline for showing cause and prejudice for

15

the procedural default had expired.2 Shelton again failed to do so, and on December 16,

16

1992, Judge Smith dismissed the second claim, denied the first claim, and issued a

17

judgment in the case. On February 25, 1994, the Ninth Circuit dismissed the appeal.3

18

Subsequently, in 2002, the Ninth Circuit issued its first decision in Shelton’s

19

codefendant Benjamin Wai Silva’s appeal of the district court’s denial of his habeas

20

petition. The Ninth Circuit affirmed in part, reversed in part and remanded Silva’s case to

21

the district court for a determination as to whether the state had suppressed Brady

22

evidence favorable to him and whether the evidence was material. Silva v. Woodford, 279

23

F.3d 825, 855 (9th Cir. 2002); see Brady v. Maryland, 373 U.S. 83 (1963). On remand, the

24

district court determined that the withheld evidence was cumulative and not material, and

25

thus no Brady violation had occurred.

26
27
28

2

In a December 15, 1993 order, the Ninth Circuit agreed with Judge Smith that the
appeal was untimely.
3

The reasons for the Ninth Circuit’s dismissal are not clear from the record.
2

1

Silva appealed the district court’s decision on remand, and in 2005, the Ninth Circuit

2

reversed the district court’s denial of Silva’s habeas petition, concluding that a Brady

3

violation had occurred. The court remanded the case to the district court with instructions

4

to grant the writ as to Silva’s murder conviction, but left Silva’s other convictions for

5

kidnapping, robbery, and a firearms violation intact. Silva v. Brown, 416 F.3d 980, 991 (9th

6

Cir. 2005).

7

On June 25, 2007, Shelton filed another habeas petition in the Eastern District of

8

California. That petition raised a Brady claim in reliance on the Ninth Circuit’s decision in

9

Silva. On September 23, 2008, the court dismissed the petition based on Shelton’s failure
to obtain permission from the Ninth Circuit to file his second and successive petition.

11
For the Northern District of California

United States District Court

10

Meanwhile, Shelton obtained permission from the Ninth Circuit to file a second or

12

successive habeas petition. In support of that application, Shelton contended that there

13

was cause based on new evidence in the case, namely evidence that he had failed to

14

discover until the Ninth Circuit issued its 2005 decision in Silva. 416 F.3d at 980. Relying

15

on Silva, Shelton asserted that he had learned that the prosecution in his case made a deal

16

with defense witness, Norman Thomas, a co-participant in the crimes, which required that

17

Thomas, who had several years prior to Silva’s and Shelton’s trial (and after the crimes)

18

been involved in a motorcycle accident and suffered severe brain damage, not undergo a

19

psychiatric evaluation before testifying at Silva’s and Shelton’s trial. See id. at 984. On

20

November 4, 2008, in a summary order, the Ninth Circuit granted Shelton’s request to file a

21

second or successive petition in district court.

22

On December 17, 2008, Shelton filed pro se the instant federal habeas petition in

23

the United States District Court for the Eastern District of California, which transferred it to

24

this court on March 18, 2010. At the time the case was transferred to this court, a motion

25

to appoint counsel was pending. Following transfer, on October 22, 2010, the court

26

granted Shelton’s motion to appoint counsel, noting that based on the Ninth Circuit’s

27

decision in Silva, it appeared that Shelton’s claims may have merit, and that establishing a

28

factual basis for them may be difficult for an incarcerated layperson. The court declined to
3

1

set further filing deadlines until appointed counsel had entered an appearance.

2

On November 18, 2010, William L. Osterhoudt was appointed as counsel for

3

Shelton. Instead of answering the petition, on August 1, 2011, the state moved to dismiss

4

Shelton’s current petition. On September 28, 2011, Shelton opposed the motion, and the

5

state chose not to file a reply.

6

DISCUSSION

7

In its motion to dismiss, the state argues that the court should dismiss the petition

8

because (1) it is a second and successive petition for which Shelton is unable to

9

demonstrate the requisite prima facie case under 28 U.S.C. § 2244(b); and (2) because the
petition is untimely.

11
For the Northern District of California

United States District Court

10

I.

Merits

12

A.

13

Section 2244, which governs second and/or successive habeas petitions, provides in

14
15
16
17
18
19

Legal Standards

pertinent part:
(b)

(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application
shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior application
shall be dismissed unless-(A)

the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable; or

(B)

(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due
diligence; and

20
21
22
23
24
25

(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

26
In order to bring a second or successive petition under § 2244(b)(2)(B), a petitioner
27
28

4

1

is required to show that “his claim (1) is based on newly discovered evidence and (2)

2

establishes that he is actually innocent of the crimes alleged.” Bible v. Schriro, 651 F.3d

3

1060, 1064 (2011) (citing King v. Trujillo, 638 F.3d 726, 729-30 (9th Cir. 2011)). Section

4

2244(b) forecloses all successive-petition review of constitutional claims unrelated to guilt

5

or innocence. See Villafuerte v. Stewart, 142 F.3d 1124, 1126 (9th Cir. 1998) (petitioner's

6

new claims of judicial bias and newly discovered evidence did not present prima facie

7

showing of actual innocence and could not be brought in second petition); Greenawalt v.

8

Stewart, 105 F.3d 1287, 1288 (9th Cir. 1997) (petitioner's new claim that lethal injection

9

violates his federal constitutional rights could not be brought in successive petition because
claim was not related to question of whether he was guilty of first degree murder).

11
For the Northern District of California

United States District Court

10

Before a second or successive petition may be filed in the district court, the

12

petitioner must first obtain an order from the court of appeals authorizing the district court to

13

consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The court of appeals may issue the

14

order upon a prima facie showing that the petition satisfies the statute. A prima facie

15

showing is "a sufficient showing of possible merit to warrant a fuller exploration by the

16

district court." Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997); see, e.g.,

17

Siripongs v. Calderon, 167 F.3d 1225, 1227-28 (9th Cir. 1999) (denying authorization to file

18

second petition where petition advanced no new material facts or colorable claims of

19

constitutional error); United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir. 1997) (denying

20

authorization to file second petition where interpretation of new rule was a matter of

21

statutory, not constitutional, law). If the court of appeals issues an order authorizing the

22

petition to proceed, the district court independently determines whether each newly-

23

presented claim in fact satisfies the statute, which requires more than a prima facie

24

showing. See United States v. Villa-Gonzalez, 208 F.3d 1160, 1164-65 (9th Cir. 2000)

25

(§ 2255 case).

26
27
28

5

1

B.

Analysis

2

In conjunction with this issue, the state argues essentially that the court should

3

evaluate the merits of Shelton’s petition at this stage in the context of a motion to dismiss.

4

In support, it contends that he has not demonstrated the requisite showing required under §

5

2244(b)(2)(B), and that the petition should be dismissed for this reason. In opposition,

6

Shelton argues that the petition is not really a second or successive petition because it is

7

based on a Brady claim. Alternatively, he argues that it should not be dismissed under §

8

2244(b) at this stage. The state did not reply to Shelton’s arguments.

9

The court agrees with Shelton that given the fact that his petition is based on a
Brady claim, and indeed one for which the Ninth Circuit already found a violation in his

11
For the Northern District of California

United States District Court

10

codefendant Silva’s case, the restrictions associated with second or successive petitions

12

likely do not apply. There is some uncertainty regarding how the second or successive

13

restrictions apply with respect to Brady claims. Several circuits have ruled that

14

second-in-time claims arising under Brady are not exempt from the second or successive

15

restrictions. See Quezada v. Smith, 624 F.3d 514, 520 (2d Cir. 2010) (applying § 2244(b)

16

to Brady claim); In re Siggers, 615 F.3d 477, 479 (6th Cir. 2010) (same); Tompkins v.

17

Secretary, Dept. of Corrections, 557 F.3d 1257, 1259–60 (11th Cir. 2009); Evans v. Smith,

18

220 F.3d 306, 323 (4th Cir. 2000) (same); see also Johnson v. Dretke, 442 F.3d 901, 911

19

(5th Cir. 2006) (“a successive petitioner urging a Brady claim may not rely solely upon the

20

ultimate merits of the Brady claim in order to demonstrate due diligence under §

21

2244(b)(2)(B) where the petitioner was noticed pretrial of the existence of the factual

22

predicate and of the factual predicate's ultimate potential exculpatory relevance”).

23

The Ninth Circuit, on the other hand, has “recognized that a Brady v. Maryland

24

violation claim in a habeas petition may not be subject to the ‘clear and convincing

25

standard’ [under § 2244(b)(2)(B)], provided the newly discovered evidence supporting the

26

claim [i]s ‘material’ under Brady.” King v. Trujillo, 638 F.3d 726 (9th Cir. 2011) (citing

27
28

6

1

United States v. Lopez, 577 F.3d 1053, 1066–68 (9th Cir. 2009) (leaving open the question

2

of whether “meritorious Brady claims that would have been reviewable under the

3

pre-AEDPA prejudice standard” are subject to § 2244(b)(2)(B)(ii))).

4

In United States v. Lopez, the federal prisoner argued that the Supreme Court's

5

decision in Panetti v. Quarterman, 551 U.S. 930 (2007), holding that

6

competency-to-be-executed claims based on Ford v. Wainwright, 477 U.S. 399 (1986), are

7

exempt from AEDPA's second or successive requirements, established that Brady claims

8

are exempt from the second-or-successive restrictions as well. Lopez, 577 F.3d at 1066.

9

The government, on the other hand, argued that all second-in-time Brady claims are
subject to the second or successive restrictions because they are second or successive

11
For the Northern District of California

United States District Court

10

claims that rely on “newly discovered” evidence. Id.

12

The Ninth Circuit observed that the Supreme Court has not always read “second or

13

successive” literally. Id. at 1062. It also noted that in Panetti, the Supreme Court held

14

“[t]he phrase ‘second or successive’ is not self-defining.” Id. (citing 551 U.S. at 943-944).

15

Responding to the government's argument, the Lopez court stated that under a literal

16

reading of “second or successive” in AEDPA,

17
18
19
20
21

federal courts would lack jurisdiction to consider any second-in-time Brady claims
unless petitioner demonstrates by clear and convincing evidence that no reasonable
factfinder would have found petitioner guilty of the offense had the newly discovered
evidence been available at trial. If § [2244(b)]4 applies literally to every
second-in-time Brady claim, federal courts would be unable to resolve an entire
subset of meritorious Brady claims: those where petitioner can show the suppressed
evidence establishes a reasonable probability of a different result and is therefore
material under Brady, but cannot, under [§ 2244(b)(2)]’s more demanding prejudice
standard, show that the evidence establishes by clear and convincing evidence that
no reasonable juror would have voted to convict petitioner.

22
Id. at 1064. The effect, the Ninth Circuit concluded, was the “perverse result” of foreclosing
23
federal review of some meritorious claims and rewarding prosecutors for failing to meet
24
25
4

27

Lopez was a § 2255 case, and the court was applying § 2255(h)’s gateway in that
case. The Ninth Circuit, however, treats the § 2244 (b) gateway identically. See United States
v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000).

28

7

26

1

their constitutional disclosure obligations under Brady. Id. at 1065.

2

Ultimately, the Lopez court declined to resolve the issue regarding whether

3

meritorious Brady claims were categorically exempt from AEDPA's second or successive

4

petition provisions, holding that “[e]ven if Panetti could be viewed as supporting an

5

exemption from AEDPA's gatekeeping provisions for meritorious Brady claims, such a rule

6

would not benefit Lopez, because we conclude (1) that Brady claims that fail to establish

7

materiality (and therefore lack merit) are subject to AEDPA's gatekeeping provisions and

8

(2) that Lopez has failed to establish materiality.” Id. However, as noted above, recently

9

and subsequent to Lopez, the Ninth Circuit again suggested that the § 2244(b)(2) second
and successive restrictions do not necessarily apply to meritorious Brady claims. King, 638

11
For the Northern District of California

United States District Court

10

F.3d at 729.

12

The court finds that to the extent an exception to § 2244(b)(2) exists for Brady

13

claims, as suggested by the Ninth Circuit, this is the case that would fit that exception. See

14

id. There is no question here that the Ninth Circuit itself concluded that the withheld

15

evidence challenged by Shelton in his instant petition was both exculpatory and material for

16

Brady purposes as concerned Shelton’s codefendant. Silva, 416 F.3d at 980. This alone

17

gives rise to a presumption that this case fits any such exception as recognized by the

18

Ninth Circuit in King. 638 F.3d at 729.

19

Alternatively, even assuming application of § 2244(b) to the petition, the court

20

declines to adjudicate the merits of Shelton’s petition as respondent invites in the context of

21

a motion to dismiss absent an opposition, traverse, and the complete record. See Villa-

22

Gonzalez, 208 F.3d at 1165 (noting that “summary denial of the [2255] motion [or 2254

23

petition] is proper when the motion and the files and records of the case conclusively show

24

that the prisoner's motion does not meet the second or successive motion requirements”).

25

Here, the court cannot at this stage, without the record and the benefit of full briefing,

26

conclude that summary denial or dismissal based on the merits is appropriate, especially

27
28

8

1

given the Ninth Circuit’s decision in Silva. 416 F.3d at 980.

2
3

For these reasons, the court DENIES respondent’s motion on this basis.
II.

Timeliness

4

A.

Legal Standards

5

AEDPA requires that an application for a writ of habeas corpus be made during the

6

one-year statute of limitations period. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides

7

in pertinent part:

8
9

(d)(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

11
For the Northern District of California

United States District Court

10

(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State
action;

12
13
14

(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or

15
16

(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

17
18
B.

Analysis

19
Respondent also argues that the instant petition is barred as untimely, contending
20
that AEDPA’s statute of limitations expired on April 24, 1997. It further contends that
21
Shelton cannot rely on the fact that he did not learn of the factual predicate for this petition
22
until the Ninth Circuit’s decision in Silva because that constituted a legal ruling and not a
23
historical fact. Alternatively, it argues that at a minimum, Shelton could have learned of the
24
predicate facts by 2002, when the Ninth Circuit issued its first order regarding Silva’s
25
habeas petition.
26
In opposition, Shelton asserts that the factual predicate for his claim is actually the
27
28

9

1

secret deal struck between the prosecution and its primary witness, Thomas, as opposed to

2

the Ninth Circuit’s ruling in Silva. In support of his opposition, Shelton submitted a June 21,

3

2007 declaration in which he attests that he was unaware of the factual predicate until he

4

personally discovered the Ninth Circuit’s 2005 decision.5 He notes that, subsequently, he

5

immediately exercised diligence by filing a second habeas petition with the California courts

6

in 2006, which those courts denied.

Shelton’s instant petition is timely under § 2244(d)(1)(D) because Shelton did not learn of

9

the factual predicate underlying the instant petition until he discovered the Ninth Circuit’s

10

July 26, 2005 decision in Silva granting Shelton’s codefendant habeas relief, and that he

11
For the Northern District of California

Based on the authority and the limited exhibits before it, the court finds that

8

United States District Court

7

exercised diligence in bringing his state and federal habeas petitions as soon as he learned

12

of that decision. The exact date that Shelton learned of the decision, and thus the

13

underlying factual predicate, is unclear to the court. However, assuming Shelton learned of

14

the Ninth Circuit’s 2005 decision within a few months of its issuance, his federal habeas

15

petition would have been due in late summer or early fall 2006. Although Shelton did not

16

file the first federal petition based on the Ninth Circuit’s decision in Silva until June 2007, he

17

did, however, file state habeas petitions with the California courts, beginning on May 4,

18

2006, which those courts did not subsequently deny until June 13, 2007. AEDPA’s statute

19

of limitations was therefore tolled during this time while “a properly filed application for State

20

post-conviction or other collateral review with respect to the pertinent judgment or claim

21

was pending." 28 U.S.C. § 2244(d)(2). Therefore, Shelton’s instant federal petition is

22

timely.

23
24

Accordingly, for these reasons, the court DENIES respondent’s motion to dismiss on
this basis as well.

25
5

27

Shelton attests that he was never notified of the Ninth Circuit’s decisions in Silva by any
counsel - for the defense or the prosecution - or by the court, but instead learned of the
decision on his own. See Oppos. Exh. C.

28

10

26

1
2

CONCLUSION
Respondent’s motion to dismiss the petition is DENIED. Respondent shall file with

3

the court and serve on petitioner, within 60 days of the date of this order, an answer

4

conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

5

cause why a writ of habeas corpus should not be issued. Respondent shall file with the

6

answer and serve on petitioner a copy of all portions of the administrative record that are

7

relevant to a determination of the issues presented by the petition.

8

If the petitioner wishes to respond to the answer, he shall do so by filing a

9

traverse with the court and serving it on respondent within 30 days of his receipt of the
answer.

11
For the Northern District of California

United States District Court

10

IT IS SO ORDERED.

12
13

Dated: March 15, 2012

14

______________________________
PHYLLIS J. HAMILTON
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

11