(HC) Sisounthone v. Neuschmid ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VANNA SISOUNTHONE, No. 2:18-cv-3181 DAD AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ROBERT NEUSHCMID, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The case was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is respondent’s motion to dismiss the petition on the grounds that it 21 contains unexhausted claims. ECF No. 10. The motion is fully briefed. See ECF Nos. 15 22 (petitioner’s opposition), 16 (respondent’s reply). Also before the court is petitioner’s request for 23 an extension of time to file (1) “objections” to the court’s “findings and recommendations” and 24 (2) a request for a certificate of appealability. ECF No. 25. 25 I. PETITIONER’S MOTION 26 Petitioner requests extended time to object to findings and recommendations, ECF No. 25 27 at 1, but no findings and recommendations were pending in this case at the time the motion was 28 filed. In light of the content of the motion and the procedural history of the case, the court has 1 construed petitioner’s filing as a request for an extension of time to file a second motion for 2 reconsideration of its November 2022 order inviting petitioner to either file a motion for a stay 3 pending exhaustion or dismiss his unexhausted claims. See ECF No. 20 (order dated November 4 8, 2022), ECF No. 24 (order denying reconsideration). Those options were offered to petitioner 5 as voluntary alternatives to a recommendation that apparently unexhausted claims be dismissed. 6 Id. The motion for extended time will be denied, and petitioner will be provided the opportunity 7 to object to the findings and recommendations on the exhaustion issue which issue for the first 8 time below. 9 Petitioner also seeks extended time to file an application for a certificate of appealability. 10 ECF No. 25 at 1. Because there has been no final order in this case, and the findings and 11 recommendations that issue below do not propose final disposition of the case, there is no current 12 or imminent certificate of appealability deadline to extend. Any request for a certificate of 13 appealability must be brought after the court issues a final order at the conclusion of district court 14 proceedings in the case. See 28 U.S.C. § 2253(a), (c)(1)(A). 15 II. RESPONDENT’S MOTION TO DISMISS 16 A. Overview 17 Respondent contends that the petition should be dismissed because Claims One, Three and 18 Four, as well as certain factual allegations and any putative claims based on them, are 19 unexhausted. ECF No. 10. Petitioner argues in opposition that he exhausted all claims in the 20 California Court of Appeal except for Claims Five and Six, which were withdrawn by appellate 21 counsel. ECF No. 15 at 2-3.1 Petitioner notes that the California Supreme Court “denied the 22 request to review the Appellate Court’s decision.” Id. at 3. He appears to argue that these facts 23 demonstrate exhaustion. 24 B. Exhaustion Requirement 25 The exhaustion of available state remedies is a prerequisite to a federal court’s jurisdiction 26 to consider claims presented in a habeas corpus petition. See 28 U.S.C. § 2254(b); Rose v. 27 1 Petitioner’s references to “Claims Five and Six” must reflect the numbering of claims on appeal 28 in state court, as the federal petition does not contain any Claims Five and Six. 1 Lundy, 455 U.S. 509 (1982). A petitioner satisfies the exhaustion requirement by providing the 2 highest state court with a full and fair opportunity to consider all of his claims before presenting 3 them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 4 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A federal claim is fairly 5 presented if the petitioner has described the operative facts and the federal legal theory upon 6 which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-366 (1995) (per curiam); 7 Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008); cert. denied, 556 U.S. 1285 (2009). 8 “Federal courts may not adjudicate mixed habeas petitions, that is, those containing both 9 exhausted and unexhausted claims.” Henderson v. Johnson, 710 F. 3d 873, 873 (9th Cir. 2013) 10 (citing Rose, 455 U.S. at 518-19). If a federal petition includes unexhausted claims, the petitioner 11 must be permitted to delete the unexhausted claims and proceed with the exhausted ones. See 12 Jones v. Bock, 549 U.S. 199, 222 (2007) (citing Rhines, supra, 544 U.S. at 278); Butler v. Long, 13 752 F.3d 1177, 1180 (9th Cir. 2014); see Kelly, 315 F.3d at 1069-70 (reversing dismissal of 14 mixed petition so court could offer petitioner opportunity to dismiss unexhausted claims and 15 proceed to merits of others). “If a stay is not appropriate, the well-established rule that the district 16 court is not to retain jurisdiction over mixed petitions applies.” Wooten v. Kirkland, 540 F.3d 17 1019, 1026 (9th Cir. 2008) (citing Olvera v. Giurbino, 371 F.3d 569, 572 (9th Cir. 2004)). 18 C. Relevant Procedural History 19 1. Trial Court 20 Petitioner was charged in Sacramento County with multiple counts arising from the armed 21 robberies of three convenience stores. The perpetrator of the three robberies wore a clown mask, 22 and the primary issue at trial was petitioner’s identity as the robber. On August 13, 2014, a jury 23 found petitioner guilty of three counts of second-degree robbery in violation of California Penal 24 Code § 211; one count of assault with a firearm (Penal Code § 245(a)(2)); two counts of false 25 imprisonment (Penal Code § 236); and two counts of attempted second-degree robbery. ECF 26 Nos. 11-1 at 1, 11-8 at 1.2 Multiple firearm enhancements (Penal Code §§ 12022.5(a)(1), 27 2 The original abstract of judgment states that petitioner was convicted of burglary on Counts 28 (continued…) 1 12022.53(b), (c)) and a prior conviction (Penal Code 667.5(b)) were found to be true. See id. 2 Petitioner was sentenced to fifty-seven years, four months in prison. Id. 3 2. State Post-Conviction Proceedings 4 Petitioner timely appealed, raising eight claims of error. See ECF No. 11-2 at 1-2.3 On 5 October 30, 2017, the appellate court ruled that the trial court had erred by failing to obtain 6 petitioner’s waiver of a jury trial as to a new prior conviction allegation. Id. All of petitioner’s 7 other allegations of error were determined to be without merit. Id. The judgment was 8 accordingly affirmed as modified.4 Id. at 22-23. 9 On or around November 30, 2017, petitioner filed a petition for review in the California 10 Supreme Court. ECF No. 11-3. The petition presented four issues: (1) whether amendments to 11 Penal Code sections 12022.5 and 12022.53 (firearm enhancements) apply to sentenced defendants 12 whose cases are not yet final; (2) whether, when analyzing prejudice from multiple missing 13 elements in a jury instruction, harmless error beyond a reasonable doubt can be found when there 14 is conflicting evidence regarding one or more of the missing elements; (3) whether a jury’s ability 15 to review certain evidence for themselves necessarily defeats a defendant’s showing of prejudice 16 caused by inadmissible lay opinion regarding that same evidence and that evidence relates to the 17 One, Five and Six. ECF No. 11-1 at 1. This was an error that was subsequently corrected pursuant to order of the California Court of Appeal. See ECF No. 11-2 at 23 n.2 (order to 18 amend); see ECF No. 11-8 (amended abstract of judgment). 19 3 The opinion of the California Court of Appeal indicates that petitioner presented the following grounds for relief: (1) trial counsel’s representation was constitutionally deficient because he did 20 not object to the introduction of lay opinion; (2) the prosecutor committed prejudicial misconduct by soliciting lay opinion; (3) the evidence was insufficient as to one count of robbery because the 21 victim did not possess the money; (4) the conviction for assault with a firearm was defective because the trial court did not instruct the jury on all elements of the offense; (5) the trial court 22 imposed unauthorized sentences for attempted robbery; (6) the trial court erred by imposing 23 consecutive sentences; (7) the trial court erred by failing to give reasons for imposing consecutive sentences; and (8) the court acted in excess of its jurisdiction when it allowed 24 the prosecution to amend the information to change a prior conviction allegation after the jury had been discharged. Id. 25 4 The California Court of Appeal modified the trial court judgment by striking: (1) the true 26 finding on the second prior conviction and prison term for possession of ammunition by a convicted felon, and (2) the associated one-year enhancement imposed for that prior prison term. 27 As a result, the matter was remanded to the trial court to prepare and deliver an amended abstract of judgment to the California Department of Corrections and Rehabilitation. ECF No. 11-2 at 23- 28 24, n.2. 1 ultimate issue in dispute; and (4) whether a reviewing court may infer, under the substantial 2 evidence standard, that a bystander at an attempted convenience store robbery was also the victim 3 of an attempted robbery of his own personal funds by virtue of the robber’s command “Give me 4 all the money” directed at the counter area. ECF No. 11-3 at 8-9. 5 On January 31, 2018, the California Supreme Court granted the petition and transferred 6 the case to the California Court of Appeal, directing it to vacate its decision and reconsider the 7 matter in light of Senate Bill 620. ECF No. 11-4. That legislation had granted the courts 8 discretion to strike firearms enhancements. ECF No. 11-5 at 23-24. The Court of Appeal in turn 9 remanded the case to the superior court, for the exercise of its discretion under the new law. ECF 10 No. 11-5 at 23-24. On resentencing, the superior court re-imposed the original sentence. ECF 11 No. 11-8 (amended abstract of judgment filed July 27, 2018). 12 On or around May 17, 2018, petitioner filed a second petition for review in the California 13 Supreme Court. ECF No. 11-6. This petition restated the issues presented in the first petition for 14 review regarding the evaluation of prejudice from instructional error, the jury’s consideration of 15 lay opinion evidence, and whether the evidence was sufficient to establish that a bystander had 16 been a victim. Id. at 2-3. The petition was denied without comment or citation. ECF No. 11-7. 17 3. The Federal Petition 18 The federal petition was docketed on December 10, 2018. ECF No. 1. It presents the 19 following four grounds for relief: (1) imposition of consecutive sentence violated California 20 Penal Code section 654’s prohibition against multiple punishment; (2) the prosecutor’s 21 questioning of witnesses and use of surveillance videos at trial violated due process by suggesting 22 petitioner’s identification; (3) trial counsel was ineffective assistance in failing to request a 23 lineup and not objecting to the prosecutor’s improper expert opinion about DNA evidence; and 24 (4) the prosecutor committed misconduct and violated petitioner’s confrontation rights by 25 offering expert opinion about DNA evidence that constituted hearsay. Id. at 4-5. A lengthy 26 supporting memorandum includes argument in support of these claims and references numerous 27 other issues that are not specified as grounds for relief. Id. at 7-39. The petition is supported by 28 hundreds of pages of exhibits. 1 D. Analysis 2 1. Claim Two is Exhausted 3 Respondent acknowledges that Claim Two of the federal petition was previously 4 presented to the California Supreme Court and is therefore exhausted. In Claim Two, petitioner 5 “challenges suggestive identification under due process and the right to exclude identification 6 testimony.” ECF No. 1 at 4. He alleges that “unnecessarily suggestive procedures” led to “an 7 irreparably mistaken identification.” Id. The supporting memorandum includes discussion of the 8 trial testimony and video surveillance evidence that was introduced to prove that petitioner was 9 the robber, and attacks that evidence as improper and insufficient. Petitioner also contends that 10 statements by the prosecutor about this evidence constituted impermissible opinion testimony. Id. 11 at 19-20. This issue was included in both of petitioner’s applications to the California Supreme 12 Court, which sought review of the intermediate appellate court’s ruling that any error regarding 13 the identification evidence was harmless because the jurors had reviewed the video themselves. 14 See ECF No. 11-3 at 27-32; ECF No. 11-6 at 14-19. Because the factual and legal basis of Claim 15 Two was presented to the state’s highest court, the claim is exhausted. See Duncan, 513 U.S. at 16 365-366. 17 2. All Other Claims are Unexhausted 18 Claim One of the federal petition, which challenges petitioner’s consecutive sentences, 19 was raised in the California Court of Appeal but was never presented to the California Supreme 20 Court. See ECF Nos. 11-3, 11-6 (petitions for review); compare ECF No. 11-2 (Appellant’s 21 Opening Brief) at 1-2. This claim is therefore unexhausted.5 See Picard, 404 U.S. at 276. 22 Claim Three, alleging ineffective assistance of trial counsel, was also presented to the 23 intermediate appellate court but not included in either petition for review in the California 24 Supreme Court. See ECF Nos. 11-3, 11-6; compare ECF No. 11-2 at 1-2. Because the claim was 25 //// 26 5 The claim is based on an alleged violation of the California Penal Code rather than any federal 27 right, and therefore provides no basis for federal habeas relief in any event. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (question of state sentencing law are not 28 cognizable in federal habeas). 1 not presented to the highest state court, it is unexhausted. See Baldwin v. Reese, 541 U.S. 27, 29 2 (2004). 3 Claim Four contends that the prosecutor made statements about DNA evidence that 4 amounted to hearsay testimony and violated petitioner’s Sixth Amendment right to confrontation. 5 This issue was not presented in the petitions for review. ECF Nos. 11-3, 11-6. Although there 6 are references in those petitions both to DNA evidence and to other allegedly improper statements 7 by the prosecutor, neither petition mentions hearsay or the Confrontation Clause as an issue 8 presented for review. Accordingly, Claim Four is unexhausted. See Wooten, 540 F.3d at 1025. 9 Petitioner insists that Claims One, Three and Four were exhausted, but he appears to rely 10 on presentation to the California Court of Appeal. See ECF No. 15 at 7-11, 27, 29-31, 91-93, 11 160, 162. Only presentation to the California Supreme Court satisfies the exhaustion 12 requirement. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Claims omitted from the 13 petitions for review are therefore not exhausted. 14 Respondent contends that additional factual allegations, included in a lengthy narrative 15 attached to the petition, are unexhausted to the extent they are intended to support additional 16 claims. See ECF No. 10 (motion to dismiss) at 1, 4. The undersigned does not construe the 17 petition to state claims other than those expressly identified as grounds for relief. See ECF No. 1 18 at 4-5 (Grounds for Relief One through Four). Petitioner’s addendum appears to be largely a 19 patchwork memorandum in support of his stated claims, borrowed from prior briefing in the state 20 appellate courts. Id. at 7-39. Petitioner’s opposition to the motion to dismiss, ECF No. 15, 21 contains no indication that petitioner is attempting to present substantive grounds for relief other 22 than the four expressly identified. See ECF No. 15. Accordingly, there are no additional claims 23 which must be evaluated for exhaustion.6 24 6 The exhaustion requirement applies to claims, not to individual factual allegations or items of 25 evidence. See Correll v. Stewart, 137 F.3d 1404, 1414 n.2 (9th Cir.), cert. denied, 525 U.S. 996 26 (1998); Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Accordingly, the undersigned need not address respondent’s contention that certain “facts” are unexhausted. Petitioner’s exhausted 27 claim is, of course, limited to the factual basis for relief that was presented to the California Supreme Court. See Rose, 455 U.S. at 513. And only the allegations and evidence that were 28 (continued…) 1 3. The Petition is Mixed 2 A mixed petition may not be entertained. Henderson v. Johnson, 710 F. 3d 873, 873 (9th 3 Cir. 2013). Because Claim Two is exhausted, petitioner should be permitted to proceed on that 4 claim and that claim only. The motion to dismiss for non-exhaustion should be granted as to 5 Claims One, Three and Four. 6 III. PLAIN LANGUAGE SUMMARY FOR A PRO SE LITIGANT 7 The magistrate judge finds that Claim Two (due process violations by the prosecutor 8 related to identification evidence) is the only claim in your federal habeas petition that you 9 presented to the California Supreme Court. That means it is your only exhausted claim. 10 Including issues in your appeal didn’t exhaust them unless they were also in your petition for 11 review. You were previously offered the opportunity to seek a stay so you could try to exhaust 12 claims, and you chose not to do that. The magistrate judge is now formally recommending that 13 Claims One, Three and Four of your federal habeas petition be dismissed as unexhausted. You 14 will have thirty days to object to these findings and recommendations. 15 Your motion for an extension of time is being denied because when you filed it there were 16 no deadlines to extend. 17 CONCLUSION 18 For the reasons explained above, IT IS HEREBY ORDERED that petitioner’s motion for 19 an extension of time (ECF No. 25) is DENIED. 20 IT IS FURTHER RECOMMENDED that respondent’s motion to dismiss (ECF No. 10) 21 be GRANTED IN PART and DENIED IN PART as follows: 22 1. GRANTED as to Claims One, Three and Four of the federal petition, and 23 2. DENIED as to Claim Two. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 before the state court may be considered in determining whether AEDPA’s limitations on relief, 27 28 U.S.C. § 2254(d), preclude consideration of the exhausted claim. See Cullen v. Pinholster, 563 U.S. 170, 181-83 (2011). The scope of § 2254(d) review is an issue distinct from the 28 exhaustion doctrine, however. 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 || objections shall be filed and served within fourteen days after service of the objections. The 5 || parties are advised that failure to file objections within the specified time may waive the right to 6 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 7 || DATED: April 25, 2023 ~ 8 Hhttrn— ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28