Thomas v. Diaz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19CV1632-H (BLM) 11 BRUCE THOMAS, 12 Petitioner REPORT AND RECOMMENDATION FOR ORDER DENYING RESPONDENT'S 13 v. MOTION TO DISMISS 14 RALPH DIAZ, Secretary, California Department of Corrections & Rehabilitation, 15 [ECF No. 4] Respondent. 16 17 18 This Report and Recommendation is submitted to United States District Judge Marilyn L. 19 Huff pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States 20 District Court for the Southern District of California. On August 29, 2019, Petitioner Bruce 21 Thomas, proceeding , commenced these habeas corpus proceedings pursuant to 28 U.S.C. 22 § 2254 by filing his Petition. ECF No. 1 (“Pet.”). That same day, the Court issued an Order 23 Requiring Response. ECF No. 2. On October 29, 2019, Respondent filed a Motion to Dismiss 24 the Petition for Writ of Habeas Corpus and a Notice of Lodgment. ECF Nos. 4 and 5 (“MTD”). 25 Petitioner filed an opposition to the motion to dismiss and a Notice of Lodgment on November 26 4, 2019. ECF Nos. 6 (“Oppo.”) and 7. On November 8, 2019, the Court ordered Respondent to 27 reply to Petitioner’s opposition on or before November 22, 2019. ECF No. 8. In accordance 28 with the Court’s order, Respondent filed a reply on November 22, 2019. ECF No. 9 (“Reply”). 1 On November 25, 2019, Petitioner submitted a Surreply that was accepted on discrepancy by 2 the Court on December 2, 2019. ECF Nos. 10-11 (“Surreply). Petitioner challenges a condition 3 of his probation stemming from his conviction for resisting arrest in 2014. Pet. 4 For the reasons set forth below, the Court RECOMMENDS that Respondent’s motion to 5 dismiss for lack of exhaustion be DENIED. 6 FACTUAL BACKGROUND 7 Petitioner’s mother, Ms. Thomas, lives in a duplex that shares a common wall with Ms. 8 Weiss. Lodgment 1 at 3. The two women were close friends for more than twenty years until 9 Petitioner and his wife moved into his mother’s home in 2013. Id. That same year, Ms. Weiss 10 obtained a civil restraining order to protect herself from Petitioner and Petitioner was ordered 11 to stay two yards away from Ms. Weiss, her daughter, and her property. Id. Petitioner was 12 arrested for violating the restraining order and resisting arrest in 2014. Id. Petitioner was found 13 guilty of resisting arrest (a misdemeanor), but not guilty of violating the restraining order. Id.; 14 see also MTD at 4. As a condition of his probation, Petitioner was ordered to stay two yards 15 away from Ms. Weiss and her daughter. Lodgment 1 at 3. Petitioner blamed Ms. Weiss and 16 her daughter for his arrest and the problems between them continued to escalate. Id. On 17 September 1, 2016, Petitioner entered Ms. Weiss’ property and yelled at her daughter for moving 18 a potted plant to the side of her home. Id. at 2. This violation of Petitioner’s condition of 19 probation was recorded by Ms. Weiss’ surveillance cameras. Id. 20 SCOPE OF REVIEW 21 Title 28, United States Code, § 2254(a), sets forth the following scope of review for 22 federal habeas corpus claims: 23 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 24 entertain an application for a writ of habeas corpus in behalf of a person in custody 25 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 26 27 28 U.S.C. § 2254(a) (2006 & Supp. 2016). 28 /// 1 LEGAL STANDARD 2 A federal court may not consider a petition for habeas corpus unless the petitioner has 3 first presented his claims to the state courts, thereby “exhausting” them. 28 U.S.C. 4 §2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 (1982). The exhaustion requirement is 5 founded on federal-state comity, as only when the state court has been presented with the claim 6 may it “pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 7 Henry, 513 U.S. 364, 365 (1995) (per curiam) (quotation marks and citations omitted). Thus, 8 exhaustion of a habeas petitioner’s federal claims requires that they have been “fairly 9 present[ed]” in each appropriate state court, including a state supreme court with powers of 10 discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In California, this generally 11 entails direct or collateral presentation to both the lower courts of appeal and the state supreme 12 court, though presentation to the state supreme court alone may suffice. Reiger v. Christensen, 13 789 F.2d 1425, 1427 (9th Cir. 1986); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Claims 14 are not exhausted by mere presentation to the state appellate system. A petitioner must also 15 “alert [] [the state] court to the federal nature of the claim.” Baldwin, 541 U.S. at 29. A 16 petitioner may indicate a federal claim by citing the source of federal law upon which he relies, 17 or by merely labeling the claim as “federal.” Id. at 32. Where none of a petitioner’s claims have 18 been presented to the highest state court as required by the exhaustion doctrine, the Court 19 must dismiss the petition. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rasberry v. Garcia, 20 448 F.3d 1150, 1154 (9th Cir. 2006). 21 DISCUSSION 22 Respondent contends that the Petition should be dismissed because it is unexhausted. 23 MTD at 5. In his motion, Respondent argues lack of exhaustion because Petitioner failed to file 24 a direct appeal in the California Supreme Court. Id. In his reply, Respondent acknowledges 25 that California law prevented Petitioner from filing for review by the California Supreme Court, 26 but asserts the claims are still unexhausted because Petitioner failed to file a habeas petition in 27 the California Supreme Court. Reply at 1-2. Respondent does not provide any relevant law or 28 legal analysis to support his assertion. Id. 1 On June 20, 2017, Petitioner was convicted of violating Penal Code § 166(a)(4) for 2 violating the 2014 condition of probation that required him to remain two yards away from Ms. 3 Weiss and her daughter. Lodgment 1 at 2; see also Oppo. at 1. On June 22, 2017, Petitioner 4 was sentenced, and his condition of probation was modified to require Petitioner to stay 100 5 yards away from Ms. Weiss and her daughter. Lodgment 1 at 2. 6 Petitioner appealed the judgment in the Appellate Division of the Superior Court of the 7 State of California where his appointed counsel filed a Wende brief and Petitioner filed a 8 supplemental brief alleging that the 100 yard stay away order was unconstitutional because “it 9 impinged upon his constitutional rights, including but not limited to his property rights and his 10 freedom of association with his mother.” Id. at 2-3. On August 16, 2017, while his appeal was 11 pending, Petitioner filed a motion to modify his probation to reduce the stay away order from 12 100 yards to two yards. Id. at 4. The trial court denied the motion on September 22, 2017. 13 Id. On September 17, 2018, Petitioner filed a second motion to modify the conditions of his 14 probation and the 100 yard stay away order. Id. at 3. The motion was heard and denied on 15 October 12, 2018. Id. at 5. Plaintiff filed a second appeal in the Appellate Division of the 16 Superior Court of the State of California challenging the October 12, 2018 denial of his motion 17 to modify his 100 yard stay away condition of probation. Id. at 2-5. On May 7, 2019, the 18 Appellate Division found “no error with the trial court’s ruling” and affirmed the denial of 19 Petitioner’s motion to modify the condition of probation. Id. at 6. 20 On July 25, 2019, Petitioner petitioned the California Court of Appeal to transfer his matter 21 to that court. Lodgment 2. The petition was denied. Lodgment 3. Petitioner attempted to file 22 a petition for review in the California Supreme Court but was unable to do so. ECF No. 7 at 2 23 (Petitioner’s Lodgment – August 13, 2019 letter to Petitioner from the California Supreme Court). 24 On August 29, 2019, Petitioner filed a federal habeas petition in this Court. Pet. He 25 raises one claim – that the condition of his probation requiring him to say at least 100 yards 26 away from his neighbor is unconstitutional - based on four separate grounds1: (1) Petitioner is 27 28 1 being denied the right to “peacefully assemble in his house and be secure,” (2) Petitioner is 2 being deprived of liberty and property without due process of law, (3) Petitioner is being 3 deprived of the liberty to travel without due process of law, and (4) the probation condition 4 violates the rights and immunities of Petitioner, a citizen of the United States. Id. at 1-10. 5 Respondent contends that because Petitioner did not identify the specific issue he wanted 6 reviewed in his petition before the California Court of Appeal and because he did not raise any 7 claims in the California Supreme Court, his petition is unexhausted and must be dismissed. MTD 8 at 5. Petitioner argues that he did identify the issues he wanted reviewed in his petition before 9 the California Court of Appeal and that he has fully exhausted his petition because he attempted 10 to file a petition for review before the California Supreme Court, but was unable to do so under 11 California Rule of Court 8.500(a). Oppo. at 3-4. Respondent replies that while Petitioner was 12 limited in his ability to directly appeal his claim, he is “free to file state habeas petitions raising 13 his claim in the appellate courts.” Reply at 2. Specifically, Petitioner is free to file a state 14 habeas petition directly in the California Court of Appeal or the California Supreme Court. Id. 15 As an initial matter, Petitioner did identify the issues he wanted reviewed in his transfer 16 petition before the California Court of Appeal. Lodgment 2 at 7. Petitioner challenged the use 17 of the appellate record from his prior case to decide the second case and the court’s alleged 18 “failure to apply the Constitutional law from [Petitioner’s appellate brief] to the issues from his 19 October 12, 2018 hearing.” Id. The October 12, 2018 hearing addressed Petitioner’s motion to 20 modify his conditions of probation. Lodgment 1 at 4. 21 With regards to exhaustion, Petitioner acknowledges that he has not presented his claim 22 to the California Supreme Court via a habeas corpus petition or a petition for review. Oppo. at 23 3. While this would normally mean that Petitioner’s claim is unexhausted, that is not the case 24 where, as here, the California Rules of Court procedurally bar Petitioner from presenting his 25 claim to the California Supreme Court. California Rule of Court 8.500(a)(1) states that 26 27 claims which are restatements of the same claim when in fact I raised one claim based on 4 28 1 (a) Right to file a petition, answer, or reply 2 (1) A party may file a petition in the Supreme Court for review of any decision of 3 the Court of Appeal, including any interlocutory order, except the denial of a transfer of a case within the appellate jurisdiction of the superior court. 4 5 Cal. Rules of Court, 8.500. Here, Petitioner filed the requisite petition for certification for transfer 6 to the court of appeal [see Lodgment 2] but the request was denied [see Lodgment 3]. Because 7 the Court of Appeal denied Petitioner’s request to transfer Petitioner’s case which at the time 8 was in the appellate jurisdiction of the Superior Court, Petitioner was prohibited from filing a 9 petition for review in the California Supreme Court. Because of this prohibition, Petitioner’s 10 claims must be deemed exhausted. See McMonagle v. Meyer, 802 F.3d 1093, 1099 (9th Cir. 11 2015) (finding that “going forward exhaustion and finality for misdemeanors will largely coincide 12 at the California Court of Appeal. When the Court of Appeal denies transfer, the petitioner will 13 have exhausted his state court remedies”); see also Lull v. California, 2018 WL 3388593, at *1 14 (E.D. Cal., July 12, 2018) (granting Respondent’s motion to dismiss for failure to exhaust where 15 petitioner failed to request certification to transfer his case to the California Court of Appeal but 16 noting that where a misdemeanant requests certification of his case for transfer and the request 17 is denied, “then the misdemeanant has fully exhausted”) (citing McMonagle, 802 F.3d at 1096, 18 1099). 19 In his reply, Respondent argues that even if Petitioner was unable to present his claim to 20 the California Supreme Court on direct appeal, he should have exhausted his claim by filing a 21 state habeas petition in the California Court of Appeal or the California Supreme Court. Reply 22 at 2. Respondent states that Petitioner “is not precluded in any way from exhausting his claim 23 in the California Supreme Court.” Id. Respondent does not provide any law to support this 24 claim. Id. 25 In 2014, a judge in this district addressed a similar situation and found that the claim was 26 exhausted. Hicker v. San Diego Superior Court, 2014 WL 4244065, at *5 (S.D. Cal., Aug. 26, 27 2014). The petitioner in Hicker was found guilty of driving with a blood alcohol level in excess 28 of .08 with a prior Vehicle Code violation, a misdemeanor. Id. at *3. The petitioner in Hicker 1 challenged his conviction claiming that the testimony from the blood sample analyst should not 2 have been admitted into evidence. Id. Initially, petitioner appealed his conviction to the 3 Appellate Division of the San Diego Superior Court. Id. at *4. The Appellate Division affirmed 4 the finding and denied petitioner’s application for transfer of the matter to the California Court 5 of Appeal. Id. Petitioner then filed a petition for transfer in the California Court of Appeal, 6 Fourth Appellate District Division One which was denied. Id. Finally, petitioner filed a Petition 7 for Writ of Certiori in the United States Supreme Court which also was denied. Id. The petitioner 8 did not file a writ of habeas corpus in the California Supreme Court. Id. The petitioner then 9 filed a federal habeas petition in district court and the respondent filed a motion to dismiss for 10 failure to exhaust. Id. at *1. Respondent argued in part that petitioner should have presented 11 his claim to the California Supreme Court by filing a habeas petition. Id. at *6. The magistrate 12 judge rejected that argument finding that in light of the Waltreus2 rule, which states that “[i]n 13 the absence of strong justification, any issue that was actually raised and rejected on appeal 14 cannot be renewed in a petition for a writ of habeas corpus[,]” the petitioner was barred “from 15 pursuing his claim by habeas petition to California's highest court[,]” and petitioner’s claims were 16 “effectively exhausted.” Id. at 7. The district judge adopted the magistrate judge’s reasoning 17 and denied respondent’s motion to dismiss. Id. at *2. The Ninth Circuit reached the same 18 conclusion in a case addressing the timeliness of a federal habeas petition challenging a 19 misdemeanor conviction, stating that “California misdemeanants [] should not be required to 20 file a habeas petition before the state Supreme Court in order to exhaust state court remedies 21 for claims already considered and rejected on direct review.” McMonagle, 802 F.3d at 10993 22 23 24 2 In Re Waltreus, 62 Cal. 2d 218 (Cal. 1965). 25 3 In reaching its decision, the court in McMonagle observed that “[a]lthough review by a state's highest court may still be ‘available’ for exhaustion purposes even when it is discouraged or subject to discretionary acceptance, the 26 key question is whether the type of review at issue forms part of the state's ‘ordinary appellate review procedure.’ And for challenges to misdemeanor convictions not heard on the merits by the Court of Appeal, review by the 27 California Supreme Court falls decidedly outside of the state's ordinary appellate review.” McMonagle, 802 F.3d at 1099 (internal citations omitted) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 847-848 (1999)). 28 1 || (overruling Larch v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995))’. 2 Here, as in Hicker, Petitioner was convicted of a misdemeanor, appealed the conviction 3 || to the appellate division of the Superior Court, had his petition for transfer to the California Court 4 Appeal denied, and filed a federal habeas petition without filing a habeas petition in the 5 || California Supreme Court. Petitioner asserted the same claims (challenging the constitutionality 6 || of the 100 yard stay away condition of probation) in all of his pleadings (appeal to the appellate 7 || division, petition for transfer, and federal petition). Accordingly, Petitioner's claims are 8 |}exhausted. See McMonagle, 802 F.3d at 1099; see also Lull, 2018 WL 3388593, at *1; Hicker, 9 WL 4244065, at *5. The Court RECOMMENDS that Respondent's motion be DENIED. 10 CONCLUSION AND RECOMMENDATION 11 For the foregoing reasons, IT 1S HEREBY RECOMMENDED that the District Judge issue 12 order: (1) approving and adopting this Report and Recommendation and (2) directing that 13 ||Judgment be entered DENYING Respondent's Motion to Dismiss without prejudice. 14 IT 1S ORDERED that no later than January _17, 2020, any party to this action may 15 written objections with the Court and serve a copy on all parties. The document should be 16 || captioned “Objections to Report and Recommendation.” 17 IT 1S FURTHER ORDERED that any reply to the objections shall be filed with the Court 18 served on all parties no later than January 31, 2020. The parties are advised that failure 19 || to file objections within the specified time may waive the right to raise those objections on 20 || appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 21 IT 1S SO ORDERED. 22 ||Dated: 12/27/2019 lxiobee Mager 23 Hon. Barbara L. ajor United States Maaistrate Judae 24 25 26 4 Larch predated the AEDPA and held that “before turning to the federal courts for habeas review, misdemeanants 27 || must present their constitutional claims to the California Supreme Court by means of state habeas petitions.” 53 F.3d at 1071-72.