Stevens v. Beard et al

Filing 9

ORDER denying 5 Motion to Dismiss; Staying Case. This case is STAYED pending final resolution of all proceedings related to the habeas corpus petition filed on 8/3/2015. The Clerk shall ADMINISTRATIVELY CLOSE this file. Petitioner shall submit a brief report on 2/8/2016 and continuing every three months thereafter. Furthermore, within 10 days of the final resolution of the state proceedings, Petitioner shall file a notice informing the court of such development and request that this matter be reopened and a new briefing schedule entered. Signed by Judge Edward J. Davila on 11/18/2015. (ejdlc1S, COURT STAFF) (Filed on 11/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JOSEPH E. STEVENS,

Case No. 5:13-cv-03877-EJD

Petitioner,
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ORDER DENYING RESPONDENTS’
MOTION TO DISMISS; STAYING
CASE

v.
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United States District Court
Northern District of California

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JERRY BEARD, et al., Secretary of the
California Department of Corrections and
Rehabilitation, et al.,

Re: Dkt. No. 5

Respondents.
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Petitioner Joseph E. Stevens (“Petitioner”) is serving two life terms without the possibility

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of parole after being convicted of murder and other related charges in San Francisco Superior

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Court. He is currently incarcerated at Salinas Valley State Prison (“SVSP”).

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Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the

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“Petition”) in this court on August 22, 2013. Respondents Jerry Beard, Secretary of the California

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Department of Corrections and Rehabilitation, and Randy Grounds, Warden of SVSP

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(“Respondents”), move to dismiss the Petition as partially unexhausted. See Docket Item No. 5.

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In response, Petitioner requests the court stay this action and hold the Petition in abeyance during

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the pendency of a newly-initiated exhaustion effort before the California Supreme Court.

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Having carefully reviewed the record and considered the written and oral arguments of
counsel, the court finds, concludes and orders as follows:
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“Before a federal court may grant habeas relief to a state prisoner, the prisoner must

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exhaust his remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To meet

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this requirement, the prisoner must “fairly present” the factual and legal bases for each claim to

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Case No.: 5:13-cv-03877-EJD
ORDER DENYING RESPONDENTS’ MOTION TO DISMISS; STAYING CASE

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the state’s highest court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Wooten v. Kirkland, 540

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F.3d 1019, 1025 (9th Cir. 2008) (“The rule of exhaustion requires that a habeas petitioner ‘fairly

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present’ his federal claims to each appropriate state court.”). “A claim is not ‘fairly presented’ if

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the state court ‘must read beyond a petition or a brief . . . in order to find material that alerts it to

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the presence of a federal claim.’” Wooten, 540 F.3d at 1025.

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2.

Generally, a federal district court must dismiss a habeas petition containing any

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claim as to which state remedies have not been exhausted - a so-called “mixed petition.” See Rose

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v. Lundy, 455 U.S. 509, 522 (1982). Alternatively, the district court may deny a meritless petition

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that includes unexhausted claims (28 U.S.C. § 2254(b)(2)), or may stay a mixed petition to allow

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United States District Court
Northern District of California

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for complete exhaustion. Rhines v. Weber, 544 U.S. 269, 277 (2005).
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The district court’s discretion to stay a mixed petition is circumscribed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the purpose of which

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legislation is to reduce delay in the execution of criminal sentences and encourage petitioners to

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seek relief in the state courts before filing their claims in federal court. Id. at 275-76. Because a

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stay has the potential to undermine these dual purposes of AEDPA, its application is only

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appropriate where the district court has first determined that there was good cause for the

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petitioner’s failure to exhaust the claims in state court and that the claims are potentially

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meritorious. Id. at 277.

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4.

In their motion to dismiss, Respondents argue that Petitioner has filed a mixed

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petition because it contains one claim that was exhausted - a juror misconduct and bias claim - and

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a claim that was not exhausted - an evidence spoliation claim - the latter of which was presented to

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the California Court of Appeals but not to the California Supreme Court. See People v. Stevens,

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No. A119073, 2012 Cal. App. Unpub. LEXIS 1862, 2012 WL 758035 (Cal. Ct. App. Mar. 9,

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2012). Respondents request the court dismiss the entire Petition without prejudice unless

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Petitioner elects to proceed in federal court only on the exhausted claim.

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5.

In response, Petitioner’s counsel concedes the spoliation claim was not presented to

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the California Supreme Court and is unexhausted. Counsel further concedes the claim must be

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Case No.: 5:13-cv-03877-EJD
ORDER DENYING RESPONDENTS’ MOTION TO DISMISS; STAYING CASE

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exhausted before this court can review it. Accordingly, Petitioner filed a Petition for Writ of

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Habeas Corpus in the California Supreme Court on August 3, 2015, based on the spoliation claim

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in an effort to exhaust it. He requests this court stay the federal petition pending a final decision

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by the state courts rather than require him to dismiss the unexhausted claim or the Petition as a

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whole.

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6.

“Under Rhines, a district court must stay a mixed petition only if: (1) the petitioner

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has ‘good cause’ for his failure to exhaust his claims in state court; (2) the unexhausted claims are

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potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in

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dilatory litigation tactics.” Wooten, 540 F.3d at 1023. For this motion, only the first two elements

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United States District Court
Northern District of California

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are at issue since there is no contention that Petitioner engaged in “dilatory litigation tactics.”
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“[G]ood cause does not require a showing of ‘extraordinary circumstances.’”

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Blake v. Baker, 745 F.3d 977, 981 (9th Cir. 2014). Instead, its existence “turns on whether the

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petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify” a failure

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to exhaust. Id. at 982. Consequently, “unspecific, unsupported excuses for failing to exhaust -

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such as unjustified ignorance,” cannot satisfy the good cause requirement. Id. at 981.

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8.

Petitioner’s good cause showing is focused on the conduct of his counsel. He

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asserts that his state appellate counsel, who is also part of the legal team representing him for this

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habeas proceeding, was ineffective when he failed to include the spoliation claim in the original

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Petition for Review made to the California Supreme Court. The Ninth Circuit has held that

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ineffective assistance of counsel, or “IAC,” “by post-conviction counsel can be good cause for a

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Rhines stay.” Id. at 982. That type of assertion, however, must be properly supported with

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evidence showing that counsel was ineffective under the standards of Strickland v. Washington,

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466 U.S. 668 (1984). Id. at 983-84.

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Though Respondents argue otherwise, Petitioner has presented more than the type

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of “bald assertion” of IAC that the Ninth Circuit deemed deficient to meet the Rhines standard.

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Id. at 982. To the contrary, Petitioner has articulated a specific instance of IAC supported by the

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admission of his state appellate counsel, who was prepared to state under oath before this court

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Case No.: 5:13-cv-03877-EJD
ORDER DENYING RESPONDENTS’ MOTION TO DISMISS; STAYING CASE

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that his handling of the Petition for Review was ineffective under Strickland. As counsel stated at

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the hearing, he simply forgot to argue spoliation to the California Supreme Court, perhaps due to

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the press of other cases requiring his attention and the need to meet the filing deadline. He also

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represented that this shortcoming is one “for which Petitioner himself bears no blame.”
The court finds counsel credible, and his admission is significant for two reasons. First, it

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cuts strongly against finding that the failure to exhaust the spoliation claim resulted from a

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strategic choice as opposed to negligence falling below the standard of care, even under the

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deferential review required by Strickland. See Crace v. Herzog, 798 F.3d 840, 852 (9th Cir. Aug.

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14, 2015) (“[J]udicial review of an attorney’s performance under Strickland must ordinarily be
‘highly deferential’ and incorporate a ‘strong presumption that counsel’s conduct falls within the

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United States District Court
Northern District of California

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wide range of reasonable professional assistance which, under the circumstances, might be

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considered sound trial strategy.’”). Second, the fact that counsel was willing to make an

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admission of IAC on the record implies that it is not just a convenient excuse created after the fact

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to preclude the dismissal of the Petition, but a “concreate and reasonable” one. Blake, 745 F.3d at

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983.

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Accordingly, the court finds the good cause requirement satisfied.

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As to the second element of the Rhines test, the court observes that “plainly

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meritless” claims do not justify a stay, even when a petitioner has shown good cause. Rhines, 544

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U.S. at 277. But here, Petitioner’s spoliation claim is not “plainly meritless.” Although the

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California Court of Appeal found the claim waived because it was not raised during Petitioner’s

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second trial, this court cannot confidently say without reviewing the entire record that it would

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reach the same conclusion under a § 2254(d) analysis. That review can only be accomplished

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after the court receives a response to the Petition on its merits.

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Because Petitioner has satisfied his burden under Rhines, the request to stay the case and

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hold the Petition is abeyance is GRANTED. This case is STAYED pending final resolution of all

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proceedings related to the habeas corpus petition filed in the California Supreme Court on August

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3, 2015. Respondents’ Motion to Dismiss (Docket Item No. 5) is DENIED. The Clerk shall

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Case No.: 5:13-cv-03877-EJD
ORDER DENYING RESPONDENTS’ MOTION TO DISMISS; STAYING CASE

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ADMINISTRATIVELY CLOSE this file.
So that the ongoing appropriateness of the stay can be monitored, Petitioner shall submit a

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brief report which describes the status of the state habeas proceedings on February 8, 2016, and

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continuing every three months thereafter. Furthermore, within 10 days of the final resolution of

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the state proceedings, Petitioner shall file a notice informing the court of such development and

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request that this matter be reopened and a new briefing schedule entered.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 18, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:13-cv-03877-EJD
ORDER DENYING RESPONDENTS’ MOTION TO DISMISS; STAYING CASE