Gordon v. Lizarraga

Filing 6

STAY ORDER; ADMINISTRATIVE CLOSURE (pjhlc3, COURT STAFF) (Filed on 3/28/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARLES DAVID GORDON,
Petitioner,

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No. C 12-0769 PJH

v.
STAY ORDER; ADMINISTRATIVE
CLOSURE
ANTHONY HEDGPETH, Warden,

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For the Northern District of California

United States District Court

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Respondent.
_______________________________/
Petitioner Charles David Gordon (“Gordon”), a state prisoner, has filed a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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BACKGROUND

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On October 2, 2009, following a bench trial in the Napa County Superior Court,

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Gordon was convicted of two counts of rape under California Penal Code § 261(a)(2); oral

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copulation with a minor under California Penal Code § 288a(b)(1); sodomy by force under

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California Penal Code §286(c); and infliction of corporal injury on a cohabitant under

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California Penal Code § 273.5(a)(5). Additionally, the court found true a multiple victim

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allegation under California Penal Code § 667.61(b) as to the rape counts. On November 4,

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2009, the trial court sentenced Gordon to forty-nine years and eight months to life in prison.

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On November 30, 2009, Gordon appealed to the California Court of Appeal, which

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affirmed his conviction on September 29, 2010. The California Supreme Court denied

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review on December 15, 2010.1

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On November 22, 2011, Gordon filed a habeas petition with the Napa County

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Gordon did not file a petition for writ of certiorari with the United States Supreme Court.
The deadline for filing such a petition was March 15, 2011.

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Superior Court, which that court dismissed as untimely on December 5, 2011. On January

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3, 2012, Gordon filed a habeas petition with the California Court of Appeal. On January 17,

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2012, the California Court of Appeal denied the petition without prejudice. It noted that

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Gordon raised new arguments regarding the timeliness of his habeas petition that were not

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previously presented to the Napa County Superior Court, and as a result, ruled that Gordon

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had not exhausted his habeas remedy with the superior court. In accordance with that

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order, on January 20, 2012, Gordon filed an amended petition with the Napa County

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Superior Court. On February 1, 2012, that court set a briefing schedule on the petition.

state court, he filed the instant federal habeas petition raising thirty-eight claims for relief.

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For the Northern District of California

Meanwhile, on February 16, 2012, while Gordon’s habeas petition was pending in

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United States District Court

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Additionally, on February 21, 2012, Gordon filed a motion to stay the federal proceedings

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pending the state court habeas proceedings.

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DISCUSSION
A.

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Legal Standard
This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a). It shall "award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto." 28 U.S.C. § 2243.

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B.

Petitioner’s Legal Claims2

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Gordon raises thirty-eight claims for federal habeas relief, including that:

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(1)

his statements were taken and introduced at trial in violation of his
Sixth Amendment rights under Massiah v. United States, 377 U.S. 201

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The court notes that in his list of claims, many of Gordon’s claims were not stated as
federal constitutional claims. Instead, Gordon phrased many as claims that the state court or
his counsel “erred” under state law. However, the court’s review of Gordon’s subsequent
discussion of the claims in most cases enabled it to ascertain that Gordon was indeed raising
the claim(s) as one(s) based on federal constitutional law, and the court has phrased the
claims accordingly in its listing of the claims in this order.
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(1964);

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(2)

the trial court improperly admitted statements from Gordon’s April 1, 2009
interrogation taken in violation of his Miranda rights;

(3)

prosecutorial misconduct in connection with the introduction of Gordon’s
statements violated his constitutional rights;

(4)

he received ineffective assistance of counsel when his trial counsel failed to
object to the introduction of statements taken in violation of Massiah;

(5)

he received ineffective assistance of counsel when his trial counsel failed to
object to the introduction of statements taken in violation of Miranda;

(6)

his due process rights were violated when the state obtained evidence by
virtue of outrageous government conduct under Rochin v. California, 342 U.S.
165 (1952);

(7)

he received ineffective assistance of counsel when his trial counsel failed to
object to the introduction of evidence obtained in violation of Rochin;

(8)

the trial court’s admission of highly prejudicial opinion testimony from Jane
Doe #2 violated his due process rights;

(9)

the trial court’s admission of prejudicial and cumulative testimony about the
rape of Jane Doe #2 violated his due process rights;

(10)

the trial court’s admission of testimony regarding Gordon’s prior sexual
molestation incident violated his due process rights;

(11)

prosecutorial misconduct in connection with claims 8, 9, and 10, violated his
due process rights;

(12)

he received ineffective assistance of counsel when his counsel failed to object
to the trial court’s admission of the evidence discussed in claims 8, 9, and 10
above and to the prosecution’s misconduct discussed in claim no. 11 above;

(13)

the trial court violated his Sixth Amendment Confrontation Clause rights and
his due process rights when it excluded evidence regarding a video involving
Gordon and Jane Doe #2;

(14)

the trial court violated his Sixth Amendment Confrontation Clause rights and
his due process rights when it limited his cross-examination regarding Jane
Doe #1's alleged consent to the rape charge;

(15)

the trial court violated his Sixth Amendment Confrontation Clause rights and
his due process rights when it excluded evidence regarding Jane Doe #1's
credibility;

(16)

the trial court violated his Sixth Amendment Confrontation Clause rights and
his due process rights when it excluded evidence regarding Jane Doe #1's
other sexual activities;

(17)

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the trial court violated his Sixth Amendment Confrontation Clause rights and

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For the Northern District of California

United States District Court

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his due process rights when it excluded evidence regarding Jane Doe #2's
drug habits;

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(18)

the trial court violated his Sixth Amendment Confrontation Clause rights and
his due process rights when it excluded evidence regarding Jane Doe #1's
drug habits;

(19)

he received ineffective assistance of counsel when his counsel failed to object
to the trial court’s exclusion of the evidence discussed in 13-18 above;

(20)

the trial court’s admission of testimony from a police officer regarding Jane
Doe #1's statements violated his Sixth Amendment Confrontation Clause
rights;

(21)

the trial court’s admission of testimony from a sexual assault nurse regarding
Jane Doe #1's statements during a sexual assault examination violated his
Sixth Amendment Confrontation Clause rights;

(22)

the trial court’s admission of testimony from a witness regarding Jane Doe
#2's statements the day following the rape violated his Sixth Amendment
Confrontation Clause rights;

(23)

the trial court’s admission of his jailhouse letters violated his due process
rights;

(24)

he received ineffective assistance of counsel when his counsel failed to object
to the trial court’s admission of his jailhouse letters;

(25)

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he received ineffective assistance of counsel when his counsel failed to
conduct an adequate pretrial investigation regarding Jane Doe #1 and Jane
Doe #2, including:

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a.

evidence that witness Marlene Maples had a bias and motive to lie
resulting from her distribution of methamphetamine to Jane Doe #2;

b.

statements from Zach McCluskey regarding the extent of Jane Doe
#2's drug use on the day of the rape;

c.

additional details regarding Jane Doe #2's sexual practices with
Gordon;

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details regarding why Jane Doe #2 decided to press charges against
Gordon after initially refusing to do so;

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inconsistencies between Detective Sandler’s police report and
Detective Elia’s police report regarding Jane Doe #2;

f.

Jane Doe #1's diversion contract;

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Jane Doe #1's intoxication on the night of the rape; and

h.

Jane Doe #1's sexual relationship with Victor Rodriguez.

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For the Northern District of California

United States District Court

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(26)

he received ineffective assistance of counsel when his counsel failed to

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litigate certain issues and motions during the pre- and post-trial proceedings,
including:

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a.

counsel’s failure to file an opposition to the motions contained in the
state’s trial brief;

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counsel’s failure to file a motion to sever his trial of the counts by
victim;

c.

counsel’s failure to file motions in limine to exclude inflammatory and
inadmissible evidence;

d.

counsel’s motion to exclude bad act evidence and his response to the
state’s motion to introduce such evidence and

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counsel’s failure to file a sentencing memorandum.

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(27)

his due process rights were violated when the victims’ advocate participated
in the case investigation and spoke with complaining witnesses;

(28)

he received ineffective assistance of counsel when his counsel failed to object
to the victim advocate’s conduct in the case;

(29)

his due process rights were violated because the evidence introduced
regarding the rape and sodomy counts was insufficient;

(30)

his due process rights were violated because the evidence introduced
regarding a corporal injury on a cohabitant count was insufficient;

(31)

he received ineffective assistance of counsel regarding his defense of
reasonable but mistaken belief of consent;

(32)

the trial court’s sentence violated his due process rights and constituted cruel
and unusual punishment under the Eighth Amendment;

(33)

he received ineffective assistance of counsel at the sentencing proceedings;

(34)

the admission of his uncharged conduct violated his due process rights;

(35)

the trial court’s sentence violated his due process rights and constituted cruel
and unusual punishment under the Eighth Amendment;

(36)

he received ineffective assistance from appellate counsel when his counsel
failed to assert potentially meritorious claims on appeal;

(37)

the Napa County Superior Court violated his constitutional rights when it
denied his claims as untimely;

(38)

cumulative error rendered his conviction unconstitutional.

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For the Northern District of California

United States District Court

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The court DISMISSES two of the claims at this stage - claim numbers 35 and 37.
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First, claim number 35 is duplicative of claim no. 32 and is DISMISSED for this reason.
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Second, claim number 37 is not a cognizable claim. The court will review any state court

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dismissals for timeliness under state law only in conjunction with determining whether

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Gordon has procedurally defaulted the claims set forth in this petition. Moreover, the Napa

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County Superior Court order of which Gordon complains is not even a final order as

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proceedings are ongoing in that court. For this reason, claim number 37 is dismissed.
Liberally construed, the remaining thirty-six claims appear colorable under 28 U.S.C.

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§ 2254. However, as noted by Gordon, only three of the thirty-six remaining claims have

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been exhausted: claim nos. 30, 34, and 35. The remaining thirty-three claims are in the

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process of being litigated in concurrent state court habeas proceedings.

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For the Northern District of California

United States District Court

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C.

Petitioner’s Stay Request
Gordon requests the court stay the instant petition while he exhausts the remaining

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claims in state court. District courts have the authority to stay mixed petitions to allow for

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exhaustion. See Rhines v. Webber, 544 U.S. 269, 274-75 (2005). However, such stays

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can only be granted upon a showing of good cause for petitioner’s failure to exhaust the

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issues before filing the federal petition, and a showing that the issues which the petitioner

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proposes to exhaust are “potentially meritorious.” Id.

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With respect to good cause, the court notes that Gordon is currently attempting to

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exhaust his claims in state court and that he filed the instant “protective” federal habeas

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petition prior to the expiration of AEDPA’s statute of limitations. Accordingly, there is

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nothing to suggest that Gordon has engaged in dilatory tactics or that he has failed to

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exercise diligence in bringing his claims before the state court and this court.

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The court does, however, have some concern regarding the quantity and nature of

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the claims brought by Gordon in the instant petition. Gordon appears to have raised every

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claim he possibly could without much thought to condensing and/or prioritizing his claims,

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and the court questions whether the remaining thirty-six claims are all “potentially

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meritorious.” Nevertheless, the court will stay the instant petition to afford the state courts

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the opportunity to act on each of the claims raised by Gordon. However, once the state

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court proceedings have resolved, the court may take a closer look at the thirty-six claims

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contained in the instant petition, and may require Gordon to further amend his federal

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habeas petition if appropriate.

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CONCLUSION
For the foregoing reasons, Gordon’s request for a stay is GRANTED, and the case

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is hereby STAYED to allow Gordon to exhaust his unexhausted claims in state court. If

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Gordon is not granted relief in state court, he may return to this court and ask that the stay

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be lifted. The stay is subject to the following condition: Gordon must notify this court

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within thirty days after the state courts have completed their review of his claims or after
they have refused review of his claims. If this condition of the stay is not satisfied, this

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For the Northern District of California

United States District Court

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court may vacate the stay and act on this petition.

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The clerk shall administratively close this case. The closure has no legal effect; it is

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purely a statistical matter. The case will be reopened, the stay vacated, and an order to

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show cause issued upon notification by petitioner in accordance with the conditions set

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forth above.

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Dated: March 28, 2012

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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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