Walker v. Eaton ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THELMEAS WALKER, Case No. 21-cv-03774-EMC 8 Petitioner, ORDER OF DISMISSAL 9 v. Docket No. 7 10 PATRICK EATON, 11 Respondent. 12 13 14 I. INTRODUCTION 15 Petitioner seeks federal habeas relief from his state convictions. The instant 28 U.S.C. 16 § 2254 action was filed in 2021, and is Petitioner’s second (“2021 Petition”). In 2016, Petitioner 17 filed a habeas action regarding the same convictions. See Walker v. Beard, Case No. 16-cv-1280- 18 EMC (N.D. Cal.) (“2016 Petition”). 19 Pursuant to Petitioner’s request, the Court stayed the 2016 Petition so that Petitioner might 20 exhaust a claim based on California’s Proposition 57. See Docket No. 18, 2016 Petition. That 21 earlier petition currently remains stayed, and Petitioner has not moved to reopen it. See generally 22 Docket, 2016 Petition. 23 Respondent moves to dismiss the 2021 Petition. See Docket No. 7 (“MTD”). For the 24 reasons discussed below, this motion is GRANTED. However, for the reasons stated below, the 25 Court will permit Petitioner to amend the 2016 Petition. 26 II. ANALYSIS 27 Petitioner’s intended claims are, to put it mildly, confused. See infra at 3 (chart of claims). 1 Petition, nor does he mention the Proposition 57 claim for which the 2016 Petition was stayed. 2 See generally, 2021 Pet.1 It thus is unclear whether Petitioner intended to waive his Proposition 3 57 and 2016 Petition claims when he filed the 2021 Petition. Second, the 2021 Petition raises 4 claims regarding either California Senate Bill 260 or 620, but (a) it is unclear which Senate Bill 5 Petitioner intends to cite and (b) the record provided by Respondent suggests that Petitioner failed 6 to exhaust at least one of these potential claims. See generally, 2021 Pet. & MTD Exs; see also 7 infra, Claims 2019-4 and 2020C. Third, the record provided by Respondent shows that Petitioner 8 has raised some claims to the California Supreme Court that were not mentioned in either the 2016 9 or the 2021 Petitions. See generally, MTD Exs. 10 Because Petitioner was sentenced nine years before he filed the 2021 Petition, Respondent 11 challenges the 2021 Petition as untimely, see MTD at 6 (citing 28 U.S.C. § 2244(d)), and urges the 12 Court to dismiss the 2021 Petition without allowing amendment of the 2016 Petition, see 13 generally, id. However, the Court is reluctant to take action which may deprive Petitioner of the 14 opportunity to pursue proper claims. 15 Petitioner’s Opposition to the MTD does not untangle any of the issues identified above. 16 See generally, Docket No. 8 (arguing that Petitioner should be granted an attorney and should not 17 be penalized for his lack of legal knowledge). However, Petitioner indicates that he is willing to 18 amend the 2016 Petition. See id. at 4-5. This course of action will allow Petitioner to pursue any 19 proper claims without undue prejudice to Respondent; claims which are not timely or not 20 cognizable may be challenged by Respondent. 21 Accordingly, in the interest of justice, the Court will dismiss the instant habeas action (No. 22 21-cv-3774) and reopen the prior action (No. 16-cv-1280), allowing Petitioner to amend the 2016 23 Petition. 24 III. CONCLUSION 25 No later than September 9, 2022, Petitioner may file an amendment to the 2016 Petition. 26 The amended petition should have the case caption and case number for the 2016 Petition on the 27 1 first page (that is, it should state “Walker v. Beard, Case No. 16-cv-1280-EMC”), and also should 2 be clearly marked “Amended Petition.” 3 The amended petition must be a complete statement of Petitioner’s claims. See Lacey v. 4 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims dismissed with 5 prejudice and without leave to amend, we will not require that they be repled in a subsequent 6 amended complaint to preserve them for appeal. But for any claims voluntarily dismissed, we will 7 consider those claims to be waived if not repled.”). This means that if Petitioner wishes to pursue 8 any claim, whether it was raised in the 2016 or 2021 Petitions, or not previously filed in federal 9 court, that claim must be included in his amended petition.2 In other words, any claim not 10 included in the amended petition will be deemed waived, and the Court will order briefing only on 11 the claims presented. 12 If Petitioner does not file an amended petition by the deadline, the Court will assume that 13 Petitioner intends to proceed only on the claims originally raised in the 2016 Petition and to waive 14 all other claims, and will set a briefing schedule for Respondent to file an answer to the 2016 15 Petition’s claims. See Claims 2012-1 through 2012-4, below. 16 17 Claim # Claim Substance Raised in State Court? Raised in Federal Court? 2012-1 Sentence of 35 years to Raised on direct appeal; Yes, raised in 2016 18 life violates the Eighth rejected by California Petition. Stayed on Feb. Amendment because it is Supreme Court. See MTD 22, 2017. 19 effectively a life sentence Exs. 1-2; see also Appeal for a juvenile No. S222982 (Cal. S.Ct. 20 nonhomicide offense. Jan. 14, 2015). 2012-2 Trial court prejudicially ” ” 21 erred in admitting expert testimony re rape trauma 22 syndrome. 2012-3 Trial court erred in ” ” 23 charging the jury that, the prosecution need not 24 prove he ejaculated. 25 2 The Court has compiled a chart of the claims it was able to find in Respondent’s exhibits and in 26 the public record, which Petitioner may wish to use to identify his claims. The Court compiled the chart only to make sense of Petitioner’s confusing litigation history. The fact that this chart refers 27 to a claim previously filed by Petitioner does not mean that the Court has concluded that claim is 1 Claim # Claim Substance Raised in State Court? Raised in Federal Court? 2012-4 The trial court erred when ” ” 2 responding to a jury question regarding when 3 appellant may have harbored an intent to 4 commit rape. 2012-5 Trial court erred by Raised on direct appeal. N/A 5 staying lesser-included Succeeded as to this offense of committing claim. See MTD Ex. 1; 6 rape during a burglary in see also Case No. violation of section A134924 (1st Dist. Ct. 7 667.61, subdivision (e)(2). App., filed March 19, 2012). 8 2017 Relief under Proposition Raised to California First No. 2016 Petition was 57. District Court of Appeal; stayed so that Petitioner 9 rejected by the California might file this claim, but Supreme Court. See MTD he did not do so in 2016 10 Exs. 3-4; see also People Petition and the 2021 v. Walker, Case No. Petition makes no mention 11 A151520 (1st Dist. Ct. of it. See generally, Pet. App., May 1, 2018) 12 (summarizing claim); Appeal No. S249253 13 (Cal. S.Ct., dismissed July 20, 2018). 14 2019-1 The verdict was not Raised and rejected in No. agreed to by each juror. habeas action before 15 Alameda County Superior Court. See MTD Ex. 8A; 16 see also Case No. HC166404-2 (Alameda 17 Cty. Super Ct., filed Sept. 4, 2019; dismissed Sept. 18 27, 2019). The record does not reveal 19 whether Petitioner presented this claim to the 20 California Supreme Court. 2019-2 There was insufficient ” ” 21 evidence to support the personal use of a firearm 22 allegation. 2019-3 Appellate counsel was ” ” 23 ineffective for failing to raise Claims [2019-1 and 24 2019-2] on appeal. 2019-4 Appellate counsel was ” Unclear. The 2021 25 ineffective for failing Petition appears to raise to move for a sentence claims regarding Senate 26 correction pursuant to Bill 260, but may have Penal Code section intended to raise claims 27 1170(d) and Senate Bill regarding Senate Bill 620. 1 Claim # Claim Substance Raised in State Court? Raised in Federal Court? LWOP sentence. 2 2020A Unknown. Record does Raised and rejected in Unknown. Record does not reveal substance of habeas action before not reveal substance of 3 claim(s). California First District claim(s). Court of Appeal. See 4 MTD Ex. 5; see also Case No. A159319 (1st 5 Dist. Ct. App., filed Jan. 13, 2020; denied Jan. 23, 6 2020). The record does not reveal 7 whether Petitioner presented claim(s) to the 8 California Supreme Court. 2020B-1 Relief from default. Raised in a habeas action No. 9 to the Alameda County Superior Court. The 10 action appears to be ongoing. See MTD Exs. 11 6-7; Walker v. California, Case No. HC 166404-2 12 (Alameda Cty. Super. Ct., filed Feb. 2, 2020). 13 2020B-2 Witness testimony should ” ” have been rejected as 14 unbelievable and, without that testimony, there was 15 insufficient evidence. 2020B-3 Trial counsel was ” ” 16 ineffective on multiple points. 17 2020C Gun enhancements should Raised in a habeas action. Unclear. The 2021 be vacated pursuant to See MTD Exs. 8-9; see Petition appears to raise 18 Senate Bill 620. also Appeal No. S264908 arguments regarding (Cal. S.Ct., filed Oct. 8, Senate Bill 260, but may 19 2020; rejected April 28, have intended to raise 2021). claims regarding Senate 20 Bill 620. 2020D Unknown. Record does Habeas petition. Appeal Unknown. Record does 21 not reveal substance of No. S265521 (Cal. S.Ct., not reveal substance of claim(s). filed Nov. 12, 2020; claim(s). 22 denied Jan. 19, 2021). The record did not refer to 23 this action, and does not reveal whether Petitioner 24 presented claim(s) to the California Supreme Court. 25 26 The instant federal habeas action is DISMISSED without prejudice. Petitioner’s motion to 27 proceed in forma pauperis (IFP) is DENIED as moot (Docket No. 2), his prior IFP application 1 The Clerk shall terminate all pending motions, enter judgment in favor of Respondent, and 2 close the file in this case, 21-cv-3774-EMC. 3 4 IT IS SO ORDERED. 5 6 Dated: July 28, 2022 7 8 ______________________________________ EDWARD M. CHEN 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27