Lucas v. Ayers

Filing 67

ORDER Finding Subclaims 2.E.7 and 7.E.1 Exhausted; Granting 62 Petitioner's Motion to Stay the Federal Case Pending Exhaustion of Remedies; and Setting Briefing Schedule. Signed by Judge Gonzalo P. Curiel on 5/5/17. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ALLEN LUCAS, Case No.: 15cv1224-GPC (WVG) Petitioner, 12 ORDER: 13 14 v. (1) FINDING SUBCLAIMS 2.E.7 AND 7.E.1 EXHAUSTED; RON DAVIS, Warden of San Quentin State Prison, (2) GRANTING PETITIONER’S MOTION TO STAY THE FEDERAL CASE PENDING EXHAUSTION OF REMEDIES [ECF No. 62]; AND 15 16 17 18 Respondent. 19 (3) SETTING DEADLINES 20 21 22 23 24 25 26 27 On January 13, 2017, the parties filed a Joint Statement regarding exhaustion and a proposed briefing schedule on stay and abeyance, and agreed that the federal Petition is a mixed petition, as it contains both exhausted and unexhausted claims. (ECF No. 56.) In the Joint Statement, the parties also agreed on and stipulated to the exhaustion status of all but two claims raised in the federal Petition, which the Court addresses below in the instant Order. On February 16, 2017, Petitioner filed a Motion to stay the federal proceedings pending the exhaustion of remedies, which included a memorandum of points and 28 1 15cv1224 1 authorities. (ECF No. 62.) On March 1, 2017, Respondent filed an Opposition to the 2 motion, and on March 15, 2017, Petitioner filed a Reply. (ECF Nos. 63, 66.) 3 In the joint statement, the parties stated their agreement that “unless the Court desires 4 oral argument on the disputed claims and/or Petitioner’s motion for a Rhines stay, both 5 questions may be decided on the pleadings.” (ECF No. 56 at 7.)1 The Court finds that the 6 issues presented here are suitable for decision without argument. 7 For the reasons discussed below, and based on the arguments presented in the 8 pleadings, the Court FINDS that subclaims 2.E.7 and 7.E.1 are both exhausted, GRANTS 9 Petitioner’s motion to stay the federal case pending the exhaustion of state remedies, and 10 SETS deadlines as outlined below. 11 I. PROCEDURAL HISTORY 12 In a Consolidated Information filed July 11, 1988, Petitioner was charged with first 13 degree murder in the deaths of Suzanne Jacobs, Colin Jacobs, Gayle Garcia, Rhonda 14 Strang, Amber Fisher, and Anne Swanke in violation of Cal. Penal Code § 187, the 15 attempted murder of Jodie Santiago Robertson in violation of Cal. Penal Code §§ 187 and 16 664, and the kidnappings of Swanke and Robertson in violation of Cal. Penal Code 17 § 207(a). (CT 4107-11.) The Consolidated Information also charged that Petitioner had 18 used a knife in each crime within the meaning of Cal. Penal Code § 12022(b), and that he 19 had inflicted great bodily injury on Swanke and Robertson in the commission of their 20 kidnappings, and on Robertson in the commission of the attempted murder, within the 21 meaning of Cal. Penal Code § 12022.7. (Id.) Petitioner was also charged with the special 22 circumstance of multiple murder under Cal. Penal Code § 190.2(a)(3), and it was alleged 23 that he had a serious prior felony conviction for rape. (Id.) 24 On June 21, 1989, after the guilt phase proceedings and deliberations, the jury found 25 Petitioner guilty of the first degree murders of Suzanne Jacobs, Colin Jacobs and Anne 26 27 When citing to documents filed with the Court’s Electronic Case Filing (“ECF”) system, the Court will refer to the page numbers assigned by that system. 1 28 2 15cv1224 1 Swanke, the attempted murder of Robertson and the kidnappings of Swanke and 2 Robertson. (CT 14232-33, 14236-39.) The jury was unable to reach a verdict with respect 3 to the Strang and Fisher murder charges and acquitted Petitioner of the murder of Garcia. 4 (CT 5563-64, 14234-35.) The jury found true the allegations that Petitioner used a deadly 5 and dangerous weapon in the murders and kidnappings and that he inflicted great bodily 6 injury on Swanke and Robertson. (CT 14232-33, 14236-39.) The jury also found true the 7 special circumstance charge of multiple murder. (CT 14240.) On August 2, 1989, after 8 the penalty phase proceedings and deliberations, the jury returned a verdict of death. (CT 9 14861.) On September 19, 1989, Petitioner was sentenced to death. (CT 14998.) 10 On automatic appeal of his conviction and judgment to the California Supreme 11 Court, Petitioner filed an opening brief on August 15, 2003. (Lodgment No. 6.) Petitioner 12 filed a reply brief on May 21, 2008, and on May 5, 2014, filed a supplemental brief prior 13 to oral arguments. (Lodgment No. 8.) The California Supreme Court affirmed Petitioner’s 14 conviction and sentence in a written decision issued on August 21, 2014. People v. Lucas, 15 60 Cal. 4th 153 (2014), disapproved of by People v. Romero, 62 Cal. 4th 1 (2015). The 16 petition for a writ of certiorari was denied by the United States Supreme Court on June 1, 17 2015. Lucas v. California, ___ U.S. ___, 135 S.Ct. 2384, No. 14-9137 (2015). 18 On November 6, 2008, while the direct appeal was pending, Petitioner filed a habeas 19 petition with the California Supreme Court. (Lodgment No. 12.) On March 22, 2010, 20 Petitioner filed a reply brief. (Lodgment No. 15.) On November 24, 2015, the California 21 Supreme Court denied the habeas petition without an evidentiary hearing. (Lodgment No. 22 16.) 23 On January 13, 2017, the parties filed a Joint Statement stipulating to the exhaustion 24 status of all but two claims raised in the federal Petition, outlining their positions on the 25 two disputed subclaims, and agreeing that the Petition contained both exhausted and 26 unexhausted claims. (ECF No. 56.) On February 16, 2017, Petitioner filed a Motion 27 [“Mot.”] to stay the federal proceedings pending the exhaustion of remedies, which 28 included a memorandum of points and authorities. (ECF No. 62.) On March 1, 2017, 3 15cv1224 1 Respondent filed an Opposition [“Opp.”] to the motion for stay and abeyance. (ECF No. 2 63.) On March 15, 2017, Petitioner filed a Reply. (ECF No. 66.) 3 4 II. DISCUSSION A. Exhaustion 5 “An application for a writ of habeas corpus on behalf of a person in custody pursuant 6 to the judgment of a State court shall not be granted unless it appears that . . . the applicant 7 has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). 8 “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion 9 requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971). 10 “The state courts have been given a sufficient opportunity to hear an issue when the 11 petitioner has presented the state court with the issue’s factual and legal basis.” Weaver v. 12 Thompson, 197 F.3d 359, 364 (9th Cir. 1999), citing Duncan v. Henry, 513 U.S. 364, 365 13 (1995) and Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998); see also Picard, 404 14 U.S. at 276 (“We emphasize that the federal claim must be fairly presented to the state 15 courts. . . .The rule would serve no purpose if it could be satisfied by raising one claim in 16 the state courts and another in the federal courts. Only if the state courts have had the first 17 opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does 18 it make sense to speak of the exhaustion of state remedies. Accordingly, we have required 19 a state prisoner to present the state courts with the same claim he urges upon the federal 20 courts.”) 21 The parties agree that eleven claims or subclaims in the federal Petition remain 22 unexhausted, including Claims 10.D, 12, 13.B.2, 13.B.5, 13.B.6, 35.M, 50.H, 50.L, 50.M, 23 52 and 53, but “do not agree as to whether subclaims 2.E.7 and 7.E.1 are exhausted; 24 Respondent believes they are not, and Petitioner believes they are.” (ECF No. 56 at 2.) 25 Based on the parties’ stipulation, the Court found Claims 10.D, 12, 13.B.2, 13.B.5, 13.B.6, 26 35.M, 50.H, 50.L, 50.M, 52 and 53 unexhausted and took the disputed claims under 27 submission. (ECF No. 57.) 28 /// 4 15cv1224 1 1. 2 In the federal Petition, subclaim 2.E.7 is entitled: “The Fingerprint Evidence Should 3 Have Been Excluded Under the Daubert2/Kumho3 Standard.” (ECF No. 45 at 202.) In this 4 subclaim, Petitioner recites the standard and asserts that “the expert handprinting evidence 5 introduced against him at trial should have been precluded by Daubert and Kumho because 6 the methodology underlying the development of the fingerprint evidence was unreliable 7 and scientifically invalid,” and points out that “[s]ince the Daubert/Kumho test is more 8 liberal in favor of admissibility, any evidence that cannot satisfy Daubert also cannot 9 satisfy Kelly, a fortiori. Leahy, 8 Cal. 4th at 595, 603.” (Id. at 203 and n.80.) Claim 2.E.7 10 Petitioner maintains that he exhausted this contention by raising it in the opening 11 brief on direct appeal, as Claim 2.5.4, and in that claim “discussed the Daubert and Kumho 12 decisions and their impact on the admissibility of expert scientific evidence in state and 13 federal court.” (ECF No. 56 at 5.) Respondent argues that “Lucas did not fairly present to 14 the California Supreme Court the question of whether Daubert and Kumho required 15 exclusion of the handprinting evidence,” and that in Claim 2.5.4, “Lucas argued he was 16 entitled to a hearing to determine the reliability of the handprinting evidence proffered by 17 the prosecution–known in California as a Kelly hearing–and that the failure to provide him 18 that hearing was a denial of his constitutional rights.” (Id. at 3.) In response to Petitioner’s 19 assertion that he cited to both cases on direct appeal, Respondent argues that “the citations 20 to those cases were offered in support of Lucas’s argument that he should have been 21 granted a Kelly hearing; Lucas never made the separate claim that those cases required the 22 California Supreme Court to conclude, regardless of whether there was a Kelly hearing, 23 that the admission of the prosecution’s evidence was erroneous.” (Id. at 3-4.) 24 The claim raised on direct appeal, argument 2.5.4, was entitled: “The Judge 25 Erroneously Denied a Kelly Hearing.” (ECF No. 35-87 at 47.) Petitioner asserted that 26 27 2 28 3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999) 5 15cv1224 1 Kelly applied to handprinting evidence and alleged that the trial judge erred in precluding 2 defense counsel from challenging the admission of that evidence under Kelly. (Id.) 3 However, in the course of arguing that the trial court erred in failing to allow the defense 4 to challenge the introduction of the handprinting evidence under Kelly, Petitioner also 5 clearly asserted that the handprinting evidence should have been excluded. (Id. at 50-51, 6 63-67.) Indeed, a review of the state court pleadings reflect that Petitioner’s argument that 7 a Kelly hearing was necessary was premised on the assertion that the handprinting evidence 8 would not have been admitted at trial had the trial court properly considered the reliability 9 of the evidence. 10 Petitioner also clearly presented argument to the California Supreme Court about the 11 relevance of Daubert and Kumho to an analysis of the issue, and specifically asserted that 12 an application of those two cases would have precluded admission of the evidence, as 13 follows: “[S]ince the Daubert/Kumho test is more liberal in favor of admissibility, any 14 evidence that cannot satisfy Daubert also cannot satisfy Kelly, a fortiori.” (ECF No. 35- 15 87 at 50.) In the direct appeal brief, Petitioner also discussed People v. Leahy, 8 Cal. 4th 16 587, 594 (1994), in which the state supreme court reaffirmed an intention to apply Kelly in 17 the wake of Daubert, and argued that: “Since the Court explicitly held that Kelly is more 18 cautious, conservative, and austere than Daubert, it follows that a technique that cannot 19 pass muster under Daubert certainly must fail the more stringent Kelly test.” (ECF No. 35- 20 87 at 50-51, n. 339.) Petitioner also pointed out that in Leahy, the state supreme court 21 utilized several factors articulated in Daubert. (Id.) Petitioner then argued that “[t]he 22 Daubert reliability factors are therefore highly relevant to the Kelly standard. Even aside 23 from Kelly, these factors are relevant because ‘the reliability and thus the relevance of 24 scientific evidence is determined . . . under the requirement of Evidence Code section 350, 25 that “[n]o evidence is admissible except relevant evidence.[”]’ (Id., at 598.) In other words, 26 even apart from Kelly, scientifically unreliable evidence is irrelevant and hence 27 inadmissible.” (Id.) 28 /// 6 15cv1224 1 Thus, while the claim presented to the California Supreme Court was centered on 2 the trial court’s failure to hold a Kelly hearing, and titled as such, within that claim 3 Petitioner also argued, contrary to Respondent’s assertion, that the admission of the 4 handprinting evidence was erroneous and that the evidence should have been excluded. 5 Accordingly, subclaim 2.E.7 is exhausted. 6 2. 7 In the federal Petition, subclaim 7.E.1 is entitled: “The Electrophoresis 4 Evidence 8 Should Have Been Excluded Under the Daubert/Kumho Standard.” (ECF No. 45 at 255.) 9 In the subclaim, Petitioner argues that “the electrophoresis evidence introduced against him 10 at trial should have been precluded by Daubert and Kumho because the methodology used 11 by Wraxall5 was unreliable and scientifically invalid,” and similar to the subclaim 12 discussed above, points out that “[s]ince the Daubert/Kumho test is more liberal in favor 13 of admissibility, any evidence that cannot satisfy Daubert also cannot satisfy Kelly, a 14 fortiori. Leahy, 8 Cal. 4th at 595, 603.” (Id. at 255-56 and n. 100.) Claim 7.E.1 15 Petitioner contends that he exhausted this contention on direct appeal as part of 16 Claim 4.4, “which discusses the Daubert and Kumho opinions and argues that the evidence 17 would have been excluded under those standards and that the application of Kelly without 18 the requirements of Daubert/Kumho fails to adequately protect a defendant’s due process 19 20 21 22 23 24 As described in the federal Petition, “Electrophoresis is a method for separation and analysis of macromolecules (including DNA, RNA, and proteins) based on their size and charge. Although PCR testing is now the most commonly used form of DNA analysis, electrophoretic testing was and is used in forensic science to isolate and compare DNA, blood proteins, and inorganic substances from crime scenes with suspects, victims, or standard reference material.” (ECF No. 45 at 124, n. 49.) 4 25 In earlier portions of Claim 7, Petitioner states that “Brian Wraxall’s Serological Research Institute (hereinafter, “SERI”) did ABO blood typing, electrophoresis for Group I, II, and III enzymes, and agglutination for the genetic markers Gm and Km,” and also identifies Brian Wraxall as a “prosecution expert.” (See ECF No. 45 at 244-45.) 5 26 27 28 7 15cv1224 1 rights.” (ECF No. 56 at 5-6.) Petitioner also notes that the California Supreme Court 2 specifically addressed this argument in the direct appeal opinion. (Id. at 6, citing People 3 v. Lucas, 60 Cal. 4th 153, 245 n.36 (2014)6.) 4 Respondent notes that “[i]n the introductory paragraph in section 4.4 of the opening 5 brief, Lucas identified his argument by stating ‘the Kelly procedures employed in 6 California violate the Due Process Clause of the federal constitution because the defense 7 is precluded from presenting, and the judge from considering, any in limine evidence of 8 unreliability other than general acceptance in the scientific community.’” (ECF No. 56 at 9 10 11 12 6 Both Petitioner and Respondent cite to the same footnote in the California Supreme Court’s opinion on direct appeal as supporting their position. That portion of the opinion reads as follows: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant also attacks the first prong of Kelly itself, claiming that this aspect of our analysis violates federal due process by undermining the trial court’s gatekeeping function and barring relevant evidence at the pretrial stage. Essentially, defendant argues that the first prong of Kelly improperly relies upon what the scientific community accepts as to the reliability of a technique, thereby supplanting the trial court’s independent determination of reliability as required by Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. But we have previously rejected such claims, and defendant offers no persuasive reason for reconsideration of our conclusion. (People v. Leahy (1994) 8 Cal.4th 587, 593-604, 34 Cal.Rptr.2d 663, 882 P.2d 321 [holding that the Kelly prongs survived Daubert in this state].) In addition, our opinion in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 149 Cal.Rptr.3d 614, 288 P.3d 1237 did not, by using the term “gatekeeper,” indicate any move away from the Kelly test toward the federal Daubert standard. (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th 747, 772, fn. 9, 149 Cal.Rptr.3d 614, 288 P.3d 1237.) 27 28 Lucas, 60 Cal. 4th at 245, n. 36. 8 15cv1224 1 4, quoting AOB vol. 4 at 1146.) Respondent acknowledges that the Petitioner relied on 2 both Daubert and Kumho, but maintains that “those cases were cited in support of an 3 argument that California’s process for determining the admissibility of certain evidence 4 violated the Constitution; Lucas did not advance the independent argument he is trying to 5 present now, which is that Daubert and Kumho required a finding that the evidence was 6 erroneously admitted regardless of process.” (Id.) Respondent argues that the state 7 supreme court’s resolution of that claim supports his contention. (Id., citing Lucas, 60 Cal. 8 4th at 245 n. 36.) 9 Argument 4.4 in the direct appeal is entitled “Kelly Violates the Federal Constitution 10 to the Extent that the Judge has no Discretion to Consider Important Factors Relevant to 11 Reliability.” (ECF No. 35-91 at 106.) In that claim, Petitioner asserted that under Daubert 12 and Kumho, a trial judge has the discretion to consider a wider variety of factors in 13 evaluating the reliability of scientific evidence than the Kelly/Frye test allows, and argued 14 that “the Kelly test undermines the trial judge by allowing the admissibility determination 15 to be conclusively controlled by the scientific community.” (Id. at 109.) 16 asserted that: “A criminal defendant, or any other litigant for that matter, should have a due 17 process right to adjudication of the reliability and admissibility of evidence under the full 18 panoply of relevant evidentiary rules. By suspending those rules as to one particular kind 19 of evidence, Kelly violates the Due Process Clause of the Fourteenth Amendment,” and 20 specifically that “the application of the Kelly test and the resulting admission of the 21 unreliable expert testimony based on the San Diego Sheriff’s Office and SERI blood 22 analysis testing deprived Lucas of a fair and reliable trial proceeding and violated his rights 23 under the Sixth, Eighth and Fourteenth Amendments.” (Id. at 110-11.) Petitioner 24 Similar to the discussion concerning the prior disputed subclaim, while the argument 25 presented to the California Supreme Court was framed as a process challenge concerning 26 the trial court’s application of Kelly, in the same claim Petitioner also clearly asserted that 27 the trial court’s admission of the contested evidence was erroneous and that the evidence 28 should have been excluded. Indeed, the California Supreme Court’s direct appeal opinion 9 15cv1224 1 addressed, and rejected, that very argument. See Lucas, 60 Cal. 4th at 244 (“He claims the 2 erroneous admission of the Swanke blood analysis evidence deprived him of a fair and 3 reliable trial proceeding and violated his rights under the Sixth, Eighth and Fourteenth 4 Amendments. The trial court properly rejected these challenges.”) 5 In the federal Petition, Petitioner again contends that the admission of this evidence 6 was erroneous and violated his constitutional right to due process, arguing that: “Both 7 Kelly/Frye and Daubert are concerned about the reliability of expert testimony, and the 8 admission of unreliable testimony not only has state law implications, it is a violation of 9 federal due process.” (ECF No. 45 at 256.) Thus, it is evident that Petitioner argued in 10 both state and federal court that the erroneous admission of the electrophoresis evidence 11 and expert testimony violated his federal due process rights. As such, the Court finds 12 subclaim 7.E.1 is exhausted. 13 B. Stay and Abeyance 14 In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that “federal district 15 courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing 16 both exhausted and unexhausted claims,” as the Court “reasoned that the interests of comity 17 and federalism dictate that state courts must have the first opportunity to decide a 18 petitioner’s claims,” and requiring “total exhaustion” of a petitioner’s claims in state court 19 prior to hearing the federal habeas petition. Rhines v. Weber, 544 U.S. 269, 273-74 (2005), 20 citing Lundy, 455 U.S. at 518-19, 522. In Rhines, the Supreme Court recognized that “[t]he 21 enactment of AEDPA in 1996 dramatically altered the landscape for federal petitions,” and 22 that “[a]s a result of the interplay between AEDPA’s 1-year statute of limitations and 23 Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’ 24 petitions run the risk of forever losing their opportunity for any federal review of their 25 unexhausted claims.” Id. at 275. 26 Therefore, the Rhines Court provided that in “limited circumstances” a procedure 27 was available under which “a district court might stay the petition and hold it in abeyance 28 while the petitioner returns to state court to exhaust his previously unexhausted claims.” 10 15cv1224 1 Id. at 275-77. The Supreme Court held that stay and abeyance was appropriate where: (1) 2 “there was good cause for the petitioner’s failure to exhaust his claims first in state court,” 3 (2) the “unexhausted claims were potentially meritorious” and (3) “there is no indication 4 that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 277-78. 5 1. 6 “The caselaw concerning what constitutes ‘good cause’ under Rhines has not been 7 developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017), citing Blake 8 v. Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes 9 good cause to excuse a petitioner’s failure to exhaust.”) In Pace v. DiGuglielmo, 544 U.S. 10 408 (2005), the Supreme Court indicated that “[a] petitioner’s reasonable confusion about 11 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file 12 in federal court.” Id. at 416, citing Rhines, 544 U.S. at 278. Meanwhile, the Ninth Circuit 13 previously held that “the application of an ‘extraordinary circumstances’ standard does not 14 comport with the ‘good cause’ standard prescribed by Rhines.” Jackson v. Roe, 425 F.3d 15 654, 661-62 (9th Cir. 2005); see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th 16 Cir. 2008) (In Jackson, we stated that ‘good cause’ for failure to exhaust does not require 17 ‘extraordinary circumstances.’”) Good Cause 18 Petitioner offers several arguments to support his assertion of good cause for failing 19 to exhaust his claims. For instance, Petitioner asserts that he was represented by the same 20 counsel on both direct appeal and in state habeas proceedings, and that counsel was 21 ineffective in failing to present a number of his claims in state court proceedings. (Mot. at 22 12-16.) Petitioner points out that the Ninth Circuit has found ineffective assistance of prior 23 counsel can satisfy the good cause requirement. (Mot. at 10, citing Blake, 745 F.3d at 983.) 24 Petitioner also asserts that one of his claims is based on evidence newly discovered by 25 current counsel and the Ninth Circuit has found good cause for failing to exhaust claims 26 based on new evidence. (Id. at 10-12, citing Gonzalez v. Wong, 667 F.3d 965, 980 (9th 27 Cir. 2011).) Petitioner also argues that the changes Cullen v. Pinholster, 563 U.S. 170 28 (2011), made to section 2254 provides good cause, because now “Lucas must not only 11 15cv1224 1 exhaust his claims, but he must also present all available evidence to the state court” before 2 this Court can consider it. (Id. at 11, 16-17.) Finally, Petitioner notes that one of his claims 3 relies on new case law, namely People v. Seumanu, 61 Cal.4th 1293, 1375 (2015) and 4 Jones v. Davis, 806 F.3d 538 (9th Cir. 2015), and points out that those cases were not yet 5 issued when the state habeas petition or reply were filed in the California Supreme Court. 6 (Id. at 17-18.) 7 With respect to his first argument, Petitioner alleges that post-conviction counsel, 8 who represented him on both direct appeal and in the state habeas proceedings, was 9 ineffective in failing to present Claims 10.D, 12, 13.B.5, 13.B.6, 35.M, 50.H, 50.L, 52 and 10 53 to the California Supreme Court, and argues, citing Blake, that “Lucas should not be 11 held accountable for prior counsel’s failings.” (Id. at 12-13, n.4.) Respondent contends 12 that “blaming state counsel for failing to include the same claims in a previous state habeas 13 petition or direct appeal as federal habeas counsel decides to include in the federal habeas 14 petition would render stay-and-abey orders ‘routine’ in contravention of the intent 15 expressed in Rhines,” and argues that “[a] mere allegation that state post-conviction 16 counsel was ineffective for overlooking an issue without more, would be contrary to the 17 Supreme Court’s directive in Rhines that stays be granted only in limited circumstances, 18 and it would run counter to the purpose of AEDPA in promoting finality of state court 19 convictions.” (Opp. at 9-10.) 20 In Blake, the Ninth Circuit indeed held “that IAC [ineffective assistance of counsel] 21 by post-conviction counsel can be good cause for a Rhines stay,” and stated that “good 22 cause under Rhines, when based on IAC, cannot be any more demanding than a showing 23 of cause under Martinez [v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012)] to excuse state 24 procedural default.” Blake, 745 F.3d at 983-84. The Ninth Circuit stated that because the 25 petitioner in that case met the procedural default cause standard, “we leave for another day 26 whether some lesser showing will suffice to show good cause under Rhines,” but intimated 27 that the Supreme Court’s language in Pace “suggests that this standard is, indeed, lesser 28 than the cause standard” required to excuse a state procedural default. Id. at 984, n. 7. 12 15cv1224 1 The Court is cognizant of, and shares, the concerns raised by Respondent, but 2 disagrees that a finding of good cause in this case would somehow render the stay and 3 abeyance procedure “routine.” A finding of good cause in this case is not contrary to the 4 intent expressed in Rhines that “stay and abeyance should be available only in limited 5 circumstances.” Id., 544 U.S. at 277. Here, contrary to Respondent’s contention, Petitioner 6 does not offer a “mere allegation” that post-conviction counsel was ineffective, but instead 7 articulates specific allegations supported by both argument and the record, as well as a 8 declaration from post-conviction counsel conceding his failure to raise the cited claims and 9 lack of strategic reason for that failure. See Blake, 745 F.3d at 982 (“[G]ood cause turns 10 on whether the petitioner can set forth a reasonable excuse, supported by sufficient 11 evidence, to justify that failure.”) 12 For instance,7 Petitioner argues that post-conviction counsel failed to raise a claim 13 of ineffective assistance of trial counsel based on trial counsel’s failure to renew a motion 14 to sever, Claim 10.D in the federal Petition, despite the fact that the California Supreme 15 Court clearly noted and identified that very failure in the direct appeal opinion. (Mot. at 16 14-15, quoting Lucas, 60 Cal. 4th at 219) (“Defendant renewed his motion to sever after 17 the prosecution presented its case-in-chief to the jury, and the trial court denied the motion. 18 He did not renew this motion after the defense presented its case. Thus, to the extent 19 defendant argues that the court’s pretrial consideration of defense evidence was relevant to 20 show that a weak case was being joined with a strong one to his prejudice, that claim is 21 forfeited because defendant passed on the opportunity to renew such a claim after 22 presenting his evidence at trial.”) As noted above, the same attorney represented Petitioner 23 24 25 26 27 28 7 Petitioner alleges that prior counsel was ineffective in failing to raise Claims 10.D, 12, 13.B.5, 13.B.6, 35.M, 50.H., 50.L, 52 and 53, and post-conviction counsel’s declaration similarly addresses each of these claims. However, the Court’s discussion will focus on a more limited number of the unexhausted claims, namely Claims 10.D, 12, 13.B.5 and 13.B.6, as the allegations and evidence provided with respect to those claims are sufficient to demonstrate good cause. 13 15cv1224 1 on both the direct appeal and in state habeas proceedings, and therefore, would presumably 2 have been acutely aware of the claims raised in both proceedings, as well as the substance 3 of the direct appeal opinion. 4 Petitioner also asserts that post-conviction counsel failed to raise several claims 5 relating to the physical evidence and forensic testing which were also readily apparent from 6 the record. (Id. at 13-14.) Specifically, Petitioner notes that Claim 12 in the federal Petition 7 challenges the reliability of the hair evidence and trial testimony relating to that evidence 8 and is based on the trial record as well as in part on a 2009 report8 that was available prior 9 to the time post-conviction counsel filed the state habeas reply brief in 2010. (Id. at 13- 10 14.) Petitioner alleges that two other claims concerning the forensic evidence, specifically 11 the failure to preserve crime scene evidence and evidence relating to another suspect, were 12 “based on facts that were apparent from the record and should have been identified by prior 13 counsel.” (Id. at 13.) Citing to specific sections of the California Supreme Court’s direct 14 appeal opinion, Petitioner argues that: “[t]he reliability and handling of scientific evidence 15 was a key issue at Lucas’s trial. See People v. Lucas, 60 Cal. 4th 153, 221, 244 (2014) 16 (e.g. failure to preserve fingerprint evidence, challenges to handwriting comparison 17 evidence, admissibility of the Swanke blood evidence). The consolidation of cases was 18 likewise a critical issue at the trial. See id. at 218.” (Mot. at 15) (italics in original.) 19 Petitioner also offers the declaration of post-conviction counsel, who states that: “I 20 did not intentionally omit or withhold any colorable claims, arguments or supporting 21 22 23 24 25 26 27 28 8 In the federal Petition, Petitioner cites to and quotes from this study and report to argue that “[i]n the absence of confirmatory testing, microscopic comparative hair analysis which purports to show that a hair ‘matches’ or ‘could have come from’ a source (like the testimony put forth by Bailey and Simms [law enforcement criminalists who testified at Petitioner’s trial] in this case) is now without support in the scientific community. See National Academy of Sciences Report, Strengthening Forensic Science in the United States: A Path Forward (2009) (hereinafter ‘NAS Report’) at 161 (‘(There is) no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA.’).” (ECF No. 45 at 292-93) (footnote omitted). 14 15cv1224 1 evidence from Lucas’s appellate briefs or state habeas petition.” (Ex. A to Reply at 1, ECF 2 No. 66 at 11.) Post-conviction counsel states that: “I have reviewed the claims deemed 3 unexhausted and the additional evidence identified by federal habeas counsel. These 4 claims as presented in the federal petition are potentially meritorious and I did not 5 intentionally omit them as part of a strategic or tactical decision.” (Id.) With respect to 6 Claim 10.D, post-conviction counsel states that “[t]he basis of this claim was apparent from 7 the record. I had no strategic or tactical reasons for failing to present this claim in Lucas’s 8 direct appeal.” (Id.) With respect to Claims 13.B.5 and 13.B.6, counsel similarly states 9 that “[t]he basis of claim [sic] was apparent from the record. I had no strategic or tactical 10 reasons for failing to present this claim [sic] in Lucas’s direct appeal.” (Id. at 2, ECF No. 11 66 at 12.) With respect to Claim 12, counsel states that: “I was aware of some scientific 12 studies discrediting hair analysis testimony, but I did not consult any experts on this issue. 13 I had no strategic or tactical reason for failing to present this claim in Lucas’s state habeas 14 petition.” (Id.) 15 “While a bald assertion cannot amount to a showing of good cause, a reasonable 16 excuse, supported by evidence to justify a petitioner’s failure to exhaust, will.” Blake, 745 17 F.3d at 982. Here, Petitioner’s allegation is supported by the declaration of post-conviction 18 counsel acknowledging that the failure to raise the unexhausted claims was not strategic or 19 tactical. Moreover, post-conviction counsel specifically concedes that he was aware of 20 studies questioning the reliability of hair comparison evidence, which was utilized in 21 Petitioner’s trial, but that he failed to investigate the issue by consulting experts on the 22 matter. The allegations are also supported by other evidence including but not limited to 23 citation to the California Supreme Court’s direct appeal opinion highlighting trial counsel’s 24 failure to re-raise the motion to sever (Claim 10.D), and reference and citation to a 2009 25 report concerning the unreliability of hair comparison evidence issued prior to the 26 conclusion of Petition’s state habeas briefing schedule (Claim 12). Based on this showing, 27 Petitioner’s allegation that post-conviction counsel was ineffective in failing to raise the 28 unexhausted claims on direct appeal or in the state habeas petition, supported by a 15 15cv1224 1 declaration from said counsel in both prior proceedings, suffices to demonstrate good cause 2 for Petitioner’s failure to exhaust those claims.9 The Court finds that Petitioner has 3 satisfied the first element required for a stay under Rhines. 4 2. 5 In Rhines, the Supreme Court cautioned that “even if a petitioner had good cause for 6 that failure [to exhaust], the district court would abuse its discretion if it were to grant him 7 a stay when his exhausted claims are plainly meritless.” Id. at 277, citing 28 U.S.C. 8 § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, 9 notwithstanding the failure of the applicant to exhaust the remedies available in the courts 10 of the State.”) At the same time, the Supreme Court also stated that “it likely would be an 11 abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the 12 petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially 13 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 14 litigation tactics.” Id. at 278. Merit of the Unexhausted Claims 15 Petitioner asserts that “[g]iven the preliminary nature of a stay request, the standard 16 for assessing potential merit should be similar to that provided in 28 U.S.C. § 2254(b)(2), 17 which allows a district court to dismiss an unexhausted claim on the merits only under 18 certain limited circumstances,” and notes that pursuant to Ninth Circuit authority, “a 19 district court may dismiss an unexhausted claim on the merits under § 2254(b)(2) ‘only 20 when it is perfectly clear that the applicant does not raise even a colorable federal claim.’” 21 (Mot. at 18, quoting Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).) 22 23 24 25 A recent Ninth Circuit decision supports Petitioner’s contention that the “plainly meritless” standard is akin to that of a “colorable” claim, as follows: A federal habeas petitioner must establish that at least one of his unexhausted claims is not “plainly meritless” in order to obtain a stay under Rhines, 544 26 27 28 9 Because Petitioner has shown good cause for failing to exhaust based on allegations of ineffective assistance of post-conviction counsel, the Court need not address whether the other arguments Petitioner advances also suffice to demonstrate good cause. 16 15cv1224 1 2 3 4 5 6 7 U.S. at 277, 125 S.Ct. 1528. In determining whether a claim is “plainly meritless,” principles of comity and federalism demand that the federal court refrain from ruling on the merits of the claim unless “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). “A contrary rule would deprive state courts of the opportunity to address a colorable federal claim in the first instance and grant relief if they believe it is warranted.” Id. (citing Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct 1198, 71 L.Ed.2d 379 (1982)). Dixon, 847 F.3d at 722. 8 Respondent contends that “the standard must be something higher than merely 9 raising a ‘colorable federal claim,’” and argues that “[s]uch a low threshold would permit 10 a stay in virtually every capital case,” which would be contrary to Rhines’s intent. (Opp. 11 at 12.) While the Court acknowledges that this threshold does not appear high, it is also 12 evident that merely showing a claim is not “plainly meritless,” on its own, is insufficient 13 to warrant a stay, nor would such a showing allowing a stay in “virtually every capital 14 case.” The Rhines Court specifically set forth three elements or factors for a district court 15 to consider in evaluating whether stay and abeyance was appropriate in a particular case. 16 Moreover, even if the “plainly meritless” element does not impose a high hurdle, it is clear 17 that some claims, such as those based only on state law, would not meet the standard. See 18 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas 19 court to reexamine state-court determinations on state law questions. In conducting habeas 20 review, a federal court is limited to deciding whether a conviction violated the Constitution, 21 laws, or treaties of the United States.”) In any event, this Court is compelled to follow and 22 apply Ninth Circuit authority, which utilizes the “colorable federal claim” standard to 23 analyze whether a claim is “plainly meritless.” Dixon, 847 F.3d at 722, quoting Cassett, 24 406 F.3d at 624. 25 At a minimum, the Court finds that several of Petitioner’s claims are not “plainly 26 meritless.” For instance, in Claim 10.D., Petitioner contends that trial counsel was 27 ineffective for failing to re-raise the motion to sever after the conclusion of the defense 28 case. In that claim, Petitioner contends that “[a]t the conclusion of the defense case, there 17 15cv1224 1 had been a number of developments which supported Lucas’s argument that the cases never 2 should have been consolidated in the first place,” including evidence concerning 3 Petitioner’s alibis for the Santiago, Garcia, and Swanke homicides, evidence that the 4 individual who committed the Strang/Fisher homicide was likely left-handed, pubic hair 5 found on Swanke that did not match Petitioner or the victim, and evidence challenging the 6 credibility of Santiago’s identification of Petitioner. (ECF No. 45 at 275.) Petitioner 7 asserts that “[t]hese additional facts would have strongly supported a renewed motion to 8 sever, as they were relevant to show that the prosecution had improperly bootstrapped weak 9 cases to stronger ones,” and asserts that “the jury’s acquittal in Garcia and mistrial in 10 Strang/Fisher showed that it understood that the prosecution had charged Lucas on some 11 cases with little to no evidence pointing to him as the perpetrator.” (Id. at 275-76.) As 12 Petitioner previously noted, the California Supreme Court specifically cited trial counsel’s 13 failure to renew this claim after the defense presentation. See Lucas, 60 Cal. 4th at 219. 14 The standard required to sustain a claim of ineffective assistance of counsel under 15 Strickland v. Washington, 466 U.S. 668 (1984) is high, as “a defendant must show both 16 deficient performance and prejudice in order to prove that he has received ineffective 17 assistance of counsel.” 18 Strickland, 466 U.S. at 687. However, it is not insurmountable. Given the allegations, it 19 is plausible that Petitioner could demonstrate trial counsel’s failure to renew the motion to 20 sever was both deficient and prejudicial. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009), citing 21 Moreover, in Claim 12, Petitioner alleges that he was convicted based in part on 22 faulty scientific evidence, specifically hair comparison evidence and testimony presented 23 in his case. The claim relies in part, as discussed above, on a 2009 National Academy of 24 Sciences Report which challenges the reliability of such evidence. The Ninth Circuit 25 recently held that “habeas petitioners can allege a constitutional violation from the 26 introduction of flawed expert testimony at trial if they show that the introduction of this 27 evidence ‘undermined the fundamental fairness of the entire trial.’” Giminez v. Ochoa, 28 821 F.3d 1136, 1145 (9th Cir. 2016), quoting Lee v. Houtzdale SCI, 798 F.3d 159, 162 18 15cv1224 1 (3rd Cir. 2015); see also Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) 2 (“[E]vidence erroneously admitted warrants habeas relief only when it results in the denial 3 of a fundamentally fair trial in violation of the right to due process.”), citing McGuire, 502 4 U.S. at 67-68. This claim, grounded in the due process clause and premised on clearly 5 established authority providing for habeas relief in the event Petitioner can demonstrate 6 that the admission of this evidence violated his right to a fair trial, is also not “plainly 7 meritless.” 8 Finally, subclaims 13.B.5 and 13.B.6, which assert that the State failed to collect or 9 preserve a number of items of physical evidence in Petitioner’s case, are similarly grounded 10 11 12 13 14 15 16 17 18 in clearly established law, as follows: Two Supreme Court cases set out the test we apply to determine when the government’s failure to preserve evidence rises to the level of a due process violation. In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant’s right to due process if the unavailable evidence possessed “exculpatory value that was apparent before the evidence was destroyed, and (is) of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), the Court added the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. 19 United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993). As with the above claims, the 20 Court cannot conclude that “it is perfectly clear that the petitioner has no hope of 21 prevailing” on these two subclaims. Cassett, 406 F.3d at 624. Based on a review of these 22 claims, it is clear to the Court that not all of Petitioner’s unexhausted claims are “plainly 23 meritless.” As such, Petitioner meets the second element required under Rhines. 24 3. 25 Finally, as a third factor to consider, the Supreme Court stated that “if a petitioner 26 engages in abusive litigation tactics or intentional delay, the district court should not grant 27 him a stay at all.” Rhines, 544 U.S. at 278. The Rhines Court recognized that “[i]n 28 particular, capital petitioners might deliberately engage in dilatory tactics to prolong their Abusive Litigation Tactics or Intentional Delay 19 15cv1224 1 incarceration and avoid execution of the sentence of death.” Id. at 277-78. 2 Respondent argues that there is an “inference” of such tactics because this is a capital 3 case, noting that “[c]apital litigants have a clear and recognized incentive for delay,” given 4 their death sentence, and as such, “every day of delay is in effect a reprieve for Lucas.” 5 (Opp. at 13-14.) In support of this argument, Respondent points out that “clearly nothing 6 prevented Lucas from filing a successive habeas petition in state court as early as 7 November 2016, or arguably earlier, as counsel clearly knew claims were being included 8 in the petition to this Court that were not presented in state court.” (Id. at 14.) 9 Petitioner asserts that “[a] capital habeas petitioner does not engage in intentionally 10 dilatory litigation tactics when he puts off filing unexhausted claims in state court (1) to 11 comply with the local rules of the federal district court regarding exhaustion, see Salcido, 12 2013 WL 5442267 at *5, or (2) to comply with the California Supreme Court’s requirement 13 of In re Reno, 55 Cal. 4th 428, 447 n.3 (2012), to provide a copy of the federal district court 14 order identifying unexhausted claims with his exhaustion petition.” (Mot. at 19-20.) 15 Indeed, the California Supreme Court stated in Reno that: “In the future, as a 16 judicially declared rule of criminal procedure, we require that such exhaustion petitions 17 clearly and affirmatively allege which claims were deemed by the federal court to be 18 exhausted, and which were not. Such allegations must be supported by ‘reasonably 19 available documentary evidence’ (People v. Duvall (1995) 9 Cal.4th 464, 474, 37 20 Cal.Rptr.2d 259, 886 P.2d 1252), such as a copy of the district court’s order.” In re Reno, 21 55 Cal. 4th 428, 447, n.3 (2012); see also id. at 443 (“As explained in more detail below, 22 such petitions must clearly and frankly disclose . . . (d) which claims were deemed 23 unexhausted by the federal court and are raised for the purposes of exhaustion. This last 24 disclosure must be supported by a copy of the federal court’s order.”) 25 In this case, as noted above, while the parties agreed that a number of claims in the 26 federal Petition were unexhausted, they disagreed on the exhaustion status of two claims 27 and asked the Court to issue a ruling on whether those two claims were exhausted. The 28 Court’s decision on those two claims is contained in this very Order. Given this dispute 20 15cv1224 1 and the California Supreme Court’s recently issued rule, it is reasonable, and not at all 2 dilatory, for Petitioner to await this Court’s decision and present all unexhausted claims to 3 the state court in a single exhaustion petition. 4 The Court is unpersuaded by Respondent’s general assertion that there is somehow 5 an “inference” of an intent or motive for Petitioner to delay in this case simply because he 6 is a capital prisoner. In Rhines, the Supreme Court indicated that a capital petitioner 7 “might” engage in such behavior, which “could frustrate AEDPA’s goal of finality by 8 dragging out indefinitely their federal habeas review,” and advised that “if a petitioner 9 engages in abusive litigation tactics or intentional delay, the district court should not grant 10 him a stay at all.” Id., 544 U.S. at 278. Here, as discussed above, it is evident that the cited 11 delay in Petitioner’s return to state court is not attributable to an improper intent or motive, 12 given the California Supreme Court’s recent rule concerning exhaustion petitions and the 13 two disputed claims. Thus, in the absence of any showing that Petitioner has engaged in 14 behavior evincing an intent to delay, the Court concludes that this element does not weigh 15 against granting a stay. Id. 16 III. CONCLUSION 17 For the reasons discussed above, the Court FINDS that subclaims 2.E.7 and 7.E.1 18 are EXHAUSTED, and GRANTS Petitioner’s motion to stay the federal case pending 19 exhaustion of state court remedies. 20 In Rhines, the Supreme Court instructed that “district courts should place reasonable 21 time limits on a petitioner’s trip to state court and back,” and indicated approval of a 22 procedure allowing 30 days to commence state court proceedings and 30 days to return to 23 federal court at the conclusion of the state court exhaustion proceedings. See id. The local 24 rules of this district provide for a similar timeline in the event stay and abeyance is granted. 25 See CivLR HC.3(g)(5) (“If the petition indicates that there are unexhausted claims from 26 which the state court remedy is still available, petitioner may be granted a thirty (30) day 27 period in which to commence litigation on the unexhausted claims in state court.”) 28 /// 21 15cv1224 1 In accordance with these timelines, Petitioner will present his unexhausted claims to 2 the state court within 30 days of the filing date of this Order, and will file proof of that 3 submission in this Court. Thereafter, Petitioner will file a brief report with this Court every 4 90 days informing the Court of the status of the state court petition. During the state court 5 proceedings, all proceedings on the federal petition will be stayed. Finally, any amended 6 Petition in this case must be filed within 30 days of the state court’s resolution of his state 7 habeas petition. If Petitioner does not commence exhaustion proceedings in state court or 8 file an amended Petition within the provided time frames, the stay and abeyance shall be 9 lifted, and the matter shall proceed in this Court on the original Petition. 10 IT IS SO ORDERED. 11 Dated: May 5, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 15cv1224

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