(HC) Roberts v. McDowell ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONTERIO MAURICE ROBERTS, No. 2: 20-cv-0872 KJN P 12 Petitioner, 13 v. ORDER & FINDINGS & RECOMMENDATIONS 14 NEIL McDOWELL, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion to stay this 19 action in order to exhaust additional claims. (ECF No. 5.) For the reasons stated herein, the 20 undersigned recommends that petitioner’s motion to stay be granted. 21 Background 22 Petitioner filed the original petition on April 29, 2020. (ECF No. 1.) This action proceeds 23 on petitioner’s second amended petition filed October 14, 2020. (ECF No. 12.) Petitioner 24 challenges his 2016 conviction for murder from Sacramento County. (Id.) 25 The petition raises the following claims. In claim one, petitioner alleges that the trial 26 court committed jury instruction error by instructing the jury on landlord/tenant law which had no 27 bearing on the relevant issues. (Id. at 17-27.) In claim two, petitioner alleges that the trial court 28 committed jury instruction error by denying his request for a pinpoint instruction clarifying the 1 imperfect self-defense. (Id. at 28-34.) In claim three, petitioner alleges that the trial court 2 violated his right to a fair trial by denying the defense motion to exclude Edward White’s 3 statement. (Id. at 34-35.) In claim four, petitioner alleges that the prosecutor committed 4 misconduct in three instances: 1) the prosecution’s play on sympathy for the victim; 2) the 5 prosecutor’s argument encouraging the jury to evaluate the evidence according to community 6 sentiment rather than the law; and 3) instructing the jurors to remove themselves from the jury. 7 (Id. at 35-39.) In claim five, petitioner alleges that the trial court violated his right to a fair trial 8 and his Sixth Amendment right to confrontation by ruling that petitioner could not cross-examine 9 Jasmine Mann about the circumstances of her assault with a deadly weapon case. (Id. at 40-42.) 10 In claim six, petitioner alleges that the trial court violated his right to a fair trial when it failed to 11 grant his motion for a new trial based on the prosecutor’s Brady1 violation and the prosecutor’s 12 failure to correct false testimony. (Id. at 42-46.) In claim seven, petitioner alleges that the 13 prosecutor failed to turn over material impeachment evidence, in violation of Brady and Giglio2. 14 (Id. at 46-51.) In claim eight, petitioner alleges the prosecutor violated his right to due process by 15 failing to correct false testimony. (Id. at 51-52.) In claim nine, petitioner alleges cumulative 16 error. (Id. at 52-53.) 17 In the second amended petition, petitioner alleges that he has exhausted all claims except 18 for claims six and seven. (Id. at 12.) In the second amended petition, and pending motion to stay, 19 petitioner requests that this action be stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005) so 20 that he may exhaust these unexhausted claims. 21 Analysis 22 A petitioner in state custody proceeding with a petition for writ of habeas corpus must 23 exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion 24 requirement by providing the highest state court with a full and fair opportunity to consider each 25 claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 26 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 27 1 Brady v. Maryland, 373 U.S. 83 (1963). 28 2 Giglio v. United States, 405 U.S. 150 (1972). 1 Under Rhines, “stay and abeyance [is] available only in limited circumstances,” and only 2 when: (1) there is “good cause” for the failure to exhaust; (2) the “unexhausted claims are 3 potentially meritorious”; and (3) “there is no indication that the petitioner engaged in intentionally 4 dilatory litigation tactics.” 544 U.S. at 277–78. 5 Good Cause 6 Petitioner argues that there is good cause to stay this action because were he to voluntarily 7 dismiss this action to comply with the exhaustion requirement, he would miss the May 13, 2020 8 deadline for filing a timely federal petition. Petitioner states that he is filing a “protective 9 petition” pursuant to Pace v. DiGuglielmo, 544 U.S. 408 (2005). 10 According to the second amended petition, the California Supreme Court denied his 11 petition for review on February 13, 2019. (ECF No. 12 at 3.) Petitioner’s conviction became 12 final 90 days later on May 14, 2019. The statute of limitations ran one year later on May 14, 13 2020. Petitioner filed his original petition on April 29, 2020. (ECF No. 1.) 14 Where a petitioner is unsure whether state proceedings for post-conviction relief are 15 “properly filed” under 28 U.S.C. § 2244(d)(2)3, he may file a “protective petition” in federal court 16 and ask for a stay and abeyance of the federal habeas proceedings until he exhausts his state 17 remedies. Rhines, 544 U.S. at 278. By filing a protective petition, a petitioner seeks to avoid a 18 determination that a federal habeas petition is time-barred after months or years of litigating in 19 state court. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). “A petitioner’s reasonable 20 confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for 21 him to file in federal court.” Id. 22 In the second amended petition, petitioner alleges that the Sacramento County Superior 23 Court denied his petition raising his unexhausted claims on June 5, 2020. (ECF No. 12 at 3-4.) 24 Petitioner alleges that his habeas corpus petition raising his unexhausted claims is pending in the 25 California Court of Appeal. (Id. at 4.) 26 27 3 “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any 28 period of limitation under this subsection.” 28 U.S.C. § 2254(d)(2). 1 The second amended petition does not state when petitioner filed his habeas petitions in 2 the Sacramento County Superior Court and the California Court of Appeal. However, the 3 Superior Court addressed the merits of petitioner’s habeas petition. (See ECF No. 8 at 138-41.) 4 In other words, the Superior Court did not find deny the petition as untimely. The undersigned 5 also observes that on October 16, 2020, the California Court of Appeal summarily denied 6 petitioner’s habeas petition, no. C092784. (See appellatecases.courtinfo.ca.gov.) As discussed 7 herein, petitioner has informed the court that he plans to file his habeas corpus petition in the 8 California Supreme Court by January 31, 2021. 9 Although the Superior Court addressed the merits of petitioner’s habeas petition, the 10 undersigned finds that petitioner’s pro se status in his state petitions supports his claim that he is 11 reasonably uncertain regarding the timelines of his state petitions.4 Accordingly, the undersigned 12 finds that petitioner has shown good cause for his failure to exhaust his unexhausted claims. See 13 Dixon v. Baker, 847 F.3d 714, 721-22 (9th Cir. 2017) (fact that petitioner was without counsel in 14 state post-conviction proceedings can constitute good cause under Rhines). 15 Potentially Meritorious 16 After reviewing the second amended petition, the undersigned finds that petitioner’s 17 unexhausted claims are potentially meritorious. ( See ECF No. 12 at 46-52.) 18 Intentional Dilatory Tactics 19 In Rhines v. Weber, Supreme Court stated, “…if a petitioner engages in abusive litigation 20 tactics or intentional delay, the district court should not grant him a stay at all.” 544 U.S. at 278. 21 On December 30, 2020, the undersigned issued an order observing that state court records 22 reflected that the California Court of Appeal denied petitioner’s habeas corpus petition on 23 October 16, 2020. (ECF No. 13.) The undersigned ordered petitioner to file briefing addressing 24 whether he had filed his habeas corpus petition in the California Supreme Court and, if not, the 25 4 The proof of service in the order by the Sacramento County Superior Court denying 26 petitioner’s habeas corpus petition demonstrates that petitioner proceeded pro se with this state 27 habeas petition. (ECF No. 8 at 142.) The undersigned reasonably assumes that petitioner is proceeding pro se with the petitions filed in the California Court of Appeal and California 28 Supreme Court. 1 | reasons for his failure to do so. (Id.) 2 On January 12, 2021, petitioner filed a letter with the court stating that he was preparing 3 | his petition for filing in the California Supreme Court. (ECF No. 14.) Petitioner stated that he 4 | expected to file his petition in the California Supreme Court no later than January 31, 2021. (d.) 5 The undersigned is concerned by petitioner’s delay in filing his petition in the California 6 | Supreme Court. Nevertheless, the undersigned does not find that petitioner has engaged in 7 | abusive litigation or intentional delay tactics. 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a 9 | district judge to this action; and 10 IT IS HEREBY RECOMMENDED that petitioner’s motion for a stay (ECF No. 5) be 11 granted; the Clerk of the Court be directed to administratively stay this action; petitioner be 12 | ordered to notify the court of the exhaustion of state court remedies within thirty days of the filing 13 | of the order by the California Supreme Court addressing his habeas petition. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 16 | after being served with these findings and recommendations, petitioner may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 19 | failure to file objections within the specified time may waive the right to appeal the District 20 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: January 27, 2021 2 Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 25 Rob872.156. 26 27 28