(HC) Ponce v. Covello ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TOMMY PONCE SR., Case No. 1:22-cv-00978-ADA-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 12 v. HABEAS CORPUS 13 PATRICK COVELLO, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND 20 On August 5, 2022, Petitioner filed a petition for writ of habeas corpus. (ECF No. 1.) On 21 August 9, 2022, the Court issued an order to show cause (“OSC”) why the petition should not be 22 dismissed for failure to exhaust state judicial remedies. (ECF No. 7.) On August 23, 2022, the 23 Court received copies of Petitioner’s petition for review filed in the California Supreme Court 24 and the order denying the petition, which the Court construed as Petitioner’s response to the 25 OSC. (ECF No. 10.) 26 On September 16, 2022, the Court found that “[b]ased on the petition for review, only the 27 judicial misconduct claim has been exhausted[, and t]he other three claims are unexhausted,” and ordered that within thirty days Petitioner either notify the Court that he is willing to proceed only 1 on the judicial misconduct claim, notify the Court that he will withdraw the entire petition, or file 2 a motion to stay the petition while he exhausts his unexhausted claim in state court. (ECF No. 11 3 at 2, 4.)1 To date, Petitioner has not responded to the Court’s order, and the time for doing so has 4 passed. 5 II. 6 DISCUSSION 7 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 8 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 9 to file a response, if it “plainly appears from the petition and any attached exhibits that the 10 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 11 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 12 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 13 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 14 on comity to the state court and gives the state court the initial opportunity to correct the state’s 15 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 16 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 17 providing the highest state court with a full and fair opportunity to consider each claim before 18 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 19 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 20 In his petition for writ of habeas corpus, Petitioner raises the following claims for relief: 21 (1) evidence (toxicology and crime scene reports) was unlawfully withheld from the trial court; 22 (2) ineffective assistance of trial counsel for failure to present toxicology and crime scene reports 23 and other exculpatory evidence at trial; (3) judicial misconduct for denying Petitioner time to 24 hire competent attorney of his choosing, denying a Marsden motion, and denying defense 25 counsel additional time to prepare Petitioner’s defense; and (4) ineffective assistance of appellate 26 counsel for failure to raise on appeal ineffective assistance of trial counsel and the issue of the 27 toxicology and crime scene reports. (ECF No. 1 at 5–10.) 1 Petitioner’s petition for review filed in the California Supreme Court presented the 2 following questions: 3 1. Can a trier of fact reasonably infer the scienter and concurrence of act and mental state or intent necessary to commit rape of an unconscious or 4 intoxicated person from evidence showing only that the defendant encountered an apparently intoxicated woman and possibly had intercourse 5 with her at some point during an otherwise unaccounted for six-to-eight-hour period? 6 2. Does a trial court deprive a defendant of his right to counsel of his choice 7 when, a week before trial is set to commence, it denies his request for time to retain counsel in a manner that effectively discourages him from retaining 8 counsel? 9 (ECF No. 10 at 7 (capitalization omitted).) The petition for review also presented the following 10 issue to exhaust state remedies: “Since consent is not a defense to charges of rape of an 11 unconscious or intoxicated person, a court prejudicially errs by admitting evidence of prior 12 sexual misconduct and instructing the jury it may consider such evidence to negate mistake or 13 accident.” (Id. (capitalization omitted).) 14 As the Court previously found, (ECF No. 11 at 2), only the judicial misconduct claim has 15 been exhausted. Petitioner’s other three claims are unexhausted. “Federal courts may not 16 adjudicate mixed habeas petitions, that is, those containing both exhausted and unexhausted 17 claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). The Court must dismiss 18 without prejudice a mixed petition containing both exhausted and unexhausted claims to give a 19 petitioner an opportunity to exhaust the claims if he can do so. Lundy, 455 U.S. at 522. However, 20 a petitioner may, at his option, withdraw the unexhausted claims and go forward with the 21 exhausted claims. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000) (“[D]istrict courts 22 must provide habeas litigants with the opportunity to amend their mixed petitions by striking 23 unexhausted claims as an alternative to suffering dismissal.”). A petitioner may also move to 24 withdraw the entire petition and return to federal court when he has finally exhausted his state 25 court remedies. Additionally, a petitioner may also move to stay and hold in abeyance the 26 petition while he exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 269, 277 27 (2005); Kelly v. Small, 315 F.3d 1063, 1070–71 (9th Cir. 2002). 1 Although given the opportunity, Petitioner has not notified the Court that he wishes to 2 | withdraw the unexhausted claims and proceed with his exhausted judicial misconduct claim or 3 | moved to stay the petition pending exhaustion of the unexhausted claims in state court. 4 | Accordingly, as “[f]ederal courts may not adjudicate mixed habeas petitions . . . containing both 5 | exhausted and unexhausted claims,” Henderson, 710 F.3d at 873, the Court finds that the petition 6 | should be dismissed without prejudice. 7 Ii. 8 RECOMMENDATION & ORDER 9 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 10 | habeas corpus be DISMISSED without prejudice for failure to exhaust state judicial remedies. 11 This Findings and Recommendation is submitted to the United States District Court 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 13 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 14 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 15 | file written objections with the Court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 17 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 18 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 19 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 20 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. DAM Le 23 | Dated: _December 20, 2022 _ OO UNITED STATES MAGISTRATE JUDGE 25 26 27 28