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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?