Benhoff v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS MICHAEL BENHOFF, Case No.: 3:19-cv-02191-GPC-MDD 12 Petitioner, ORDER ADOPTING THE REPORT 13 AND RECOMMENDATION v. DENYING RESPONDENT’S 14 STU SHERMAN, Warden, MOTION TO DISMISS PETITION 15 FOR WRIT OF HABEAS CORPUS [ECF NO. 7] 16 Respondent. 17 18 On November 18, 2019, Petitioner Thomas Michael Benhoff (“Petitioner” or 19 “Benhoff”), a California probationer proceeding pro se and in forma pauperis (“IFP”), 20 filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. 21 (ECF Nos. 1, 2.) The Court granted the IFP motion on November 21, 2019. (ECF No. 3.) 22 On December 12, 2019, Respondent moved to dismiss Mr. Benhoff’s Petition on 23 the basis that he had failed to exhaust his remedies in state court. (ECF No. 7.) On 24 January 17, 2020, Petitioner filed a response in opposition to the motion to dismiss asking 25 the Court to stay his Petition and hold it in abeyance. (ECF No. 12.) Presently before the 26 Court is a Report and Recommendation (“Report”) issued by the Honorable Magistrate 27 1 Judge Mitchell D. Dembin recommending the Court to deny Respondent’s motion to 2 dismiss. (ECF No. 13.) No objections have been filed to the Magistrate Judge’s Report. 3 After a thorough review of the issues and for the reasons set forth below, the Court 4 ADOPTS the Magistrate Judge’s Report DENYING Respondent’s motion to dismiss 5 and DENYING AS MOOT Petitioner’s request for a stay. 6 I. BACKGROUND 7 Petitioner has served a 12-year sentence in state prison and is now on parole. (ECF 8 No. 1 at 2.) Petitioner pled guilty to two counts of annoying or molesting children in 9 violation of Cal. Penal Code § 647.6(a)(1) and one count of indecent exposure in 10 violation of Cal. Penal Code § 314(1). (ECF No. 8-1 at 2.) Petitioner also “admitted to the 11 existence of several prior convictions, including one under section 288, subdivision (a).” 12 (Id.; see Cal. Penal Code § 288(a) (felony lewd intent touching of child under 14 years 13 old)). Pursuant to Cal. Penal Code § 647.6(c)(2), Petitioner’s prior convictions were used 14 to impose the alternative felony sentencing “due to his status as a repeat offender.” (Id.) 15 Petitioner filed a direct appeal to the California Court of Appeal from a judgment 16 of the Superior Court of San Diego County arguing that equal protection principles 17 prohibit the use of his prior conviction under § 288(a) to elevate his offenses to felony 18 status. (ECF No. 8-1 at 3.) The Court of Appeal found “no equal protection violation” 19 and affirmed the judgment of conviction. (Id. at 5.) Petitioner filed a Petition for Review 20 with the California Supreme Court raising the same issue. (ECF No. 8-2). The Petition 21 for Review was denied without comment. (Id.) 22 Petitioner also filed several petitions for habeas corpus relief. (See ECF No. 8-3 at 23 1 (taking judicial notice of the record filed in one appeal and multiple orders filed in 24 habeas corpus proceedings)). As relevant here, Petitioner filed a habeas petition with the 25 Superior Court of California, San Diego County, on December 3, 2018. (ECF No. 8-4.) 26 Petitioner appended a memorandum to the petition in state court that is similar to the 27 1 memorandum also appended in his federal petition. (Compare ECF No. 8-4 at 53 with 2 ECF No. 1 at 13.) Between the state court petition and its attached memorandum, 3 Petitioner asserted that the trial judge imposed an aggravated sentence based on facts that 4 no jury found to be true, that he was denied attorneys of his choice in violation of the 5 Sixth Amendment, that he was denied access to the courts in various ways, and that the 6 denial of access to legal materials violated the First Amendment. (ECF No. 8-4 at 3, 14, 7 21, 30–31.) On January 29, 2020, the California Supreme Court denied the petition 8 without comment.1 (ECF No. 15 at 2.) 9 On November 18, 2019, Petitioner filed a federal Petition for Writ of Habeas 10 Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He raised four grounds for relief: (1) 11 denial of attorneys of choice; (2) a due process violation premised on denial of access to 12 the courts; (3) a First Amendment violation; and (4) a Sixth Amendment violation. (ECF 13 No. 1 at 6–9.) The first through third grounds for relief are premised on Petitioner’s lack 14 of access to the jail law library. (Id.) The fourth ground for relief is based on the assertion 15 that the trial court “imposed an aggravated sentence in [Petitioner’s] case based 16 exclusively on ‘facts’ no jury had ever found to be true.” (ECF No. 1 at 9.) Petitioner’s 17 attached memorandum also alleges that appellate counsel was ineffective and a violation 18 of right to a jury trial. (See id. at 13.) 19 On December 12, 2019, Stu Sherman (“Respondent”) moved to dismiss the 20 Petition because Benhoff had not exhausted his state remedies. (ECF No. 7-1.) On 21 January 17, 2020, Petitioner filed a response in opposition asking the Court to stay his 22 Petition and hold it in abeyance. (ECF No. 12.) On February 6, 2020, the Magistrate 23 24 25 1 Petitioner’s request to lodge the Supreme Court of California’s denials of his habeas petitions is 26 GRANTED. (ECF No. 15.) Notably, the Supreme Court of California’s decisions on January 29, 2020, deny both the foregoing petition (Case No. S252859), as well as another petition that was pending with 27 California’s state courts (Case No. 254286.) (ECF No. 15 at 2–3; ECF No. 8-5.) 1 Judge issued a Report and Recommendation (“R&R”) as to Respondent’s motion, 2 recommending to this Court that the motion to dismiss be denied because Petitioner had 3 exhausted his state remedies. (ECF No. 13.) Plaintiff has since requested a ruling on the 4 Magistrate Judge’s R&R. (ECF No. 17.) 5 II. STANDARD OF REVIEW 6 A. Magistrate Judge’s Report 7 The district judge must “make a de novo determination of those portions of the 8 report ... to which objection is made,” and “may accept, reject, or modify, in whole or in 9 part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b); Fed. 10 R. Civ. P. 72(b). The district court need not review de novo those portions of a Report to 11 which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 12 2005) (citing U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The 13 Magistrate Judge ordered that the parties may file written objections with the court by 14 February 28, 2020 and none have been filed. (ECF No. 13.) 15 III. DISCUSSION 16 A. Exhaustion Requirement 17 “An application for a writ of habeas corpus on behalf of a person in custody 18 pursuant to the judgment of a State court shall not be granted unless it appears that – (A) 19 the applicant has exhausted the remedies available in the courts of the State . . .” 28 20 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 510 (1982) (holding that a 21 district court must petitions containing unexhausted claims, “leaving the prisoner with the 22 choice of returning to state court to exhaust his claims or of amending or resubmitting the 23 habeas petition to present only exhausted claims to the district court.”) A California 24 prisoner “seeking federal habeas corpus relief must exhaust his claims before the 25 California courts prior to filing for habeas corpus relief in federal court.” Dixon v. Clark, 26 714 F. Supp. 2d 1029, 1032 (C.D. Cal. 2010) (citation omitted). 27 1 Habeas corpus petitioners’ claims must be “fairly presented” in state courts to be 2 considered exhausted, which generally requires the Petitioner to bring forward his claim 3 “in each appropriate state court.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). To “fairly 4 present” a claim for purposes of exhausting state remedies, petitioners must alert the state 5 court to the federal nature of their claims within their habeas corpus petition. See id. at 6 31. Habeas corpus petitioners must present the same claim or claims to the state courts as 7 they present to a federal court. See Picard v. Connor, 404 U.S. 270, 276 (1971) (“Only if 8 the state courts have had the first opportunity to hear the claim sought to be vindicated in 9 a federal habeas proceeding does it make sense to speak of the exhaustion of state 10 remedies”). 11 In California, petitioners whose appeals were denied by the California Supreme 12 Court have exhausted their state remedies even if the court denied their appeal without 13 explanation. See Castro v. Klinger, 373 F.2d 847 (9th Cir. 1967). “Federal courts should 14 avoid the temptation to postpone confronting the merits of federal habeas applications by 15 needlessly returning petitioners to the state courts. Overburden on both federal and state 16 systems is thereby increased.” Ross v. Craven, 478 F.2d 240, 241 (9th Cir. 1973). Federal 17 courts must not encourage repetitious applications to state courts in the guise of requiring 18 petitioners to exhaust state remedies. Id. 19 B. Magistrate Judge’s Analysis 20 On February 6, 2020, the Magistrate Judge issued a Report recommending the 21 Court deny Respondent’s motion to dismiss because Petitioner had exhausted his state 22 remedies. (ECF No. 13.) The Magistrate Judge observed that, as of December 12, 2019, 23 when Respondents moved to dismiss the Petition, Petitioner had yet to exhaust his 24 remedies because he still had a state habeas petition under review. (Id. at 4.) The 25 Magistrate Judge then observed that Plaintiff’s habeas petition in state court was denied 26 on January 29, 2020. (Id. at 5) The Magistrate Judge then concluded that Petitioner’s 27 1 grounds for relief were exhausted. (Id.) Importantly, the Magistrate Judge reviewed the 2 state and federal habeas petitions and concluded that they “rais[ed] the same four grounds 3 for relief.” (Id.) 4 C. This Court’s Analysis 5 Here, the Court adopts the Magistrate Judge’s conclusion. As noted, Petitioner pled 6 to three offenses in California state court. (ECF No. 8-1 at 2.) Plaintiff has since appealed 7 his convictions to the Supreme Court of California and filed several habeas petitions in 8 state court which have been denied. (See ECF Nos. 8-1 at 3, 8-2, 8-3 at 1.) Plaintiff, 9 moreover, raised the very same arguments in a recent state habeas petition that he now 10 presents in his federal habeas petition. (Compare ECF No. 8-4 at 53 with ECF No. 1 at 11 13.) These arguments include that the trial judge imposed an aggravated sentence based 12 on facts that no jury found to be true, that Petitioner was denied attorneys of his choice in 13 violation of the Sixth Amendment, that he was denied access to the courts in various 14 ways, and that the denial of access to legal materials violated the First Amendment. (ECF 15 No. 8-4 at 3, 14, 21, 30–31.) 16 On this record, the Court concludes that Plaintiff has fairly presented his arguments 17 to a state court and thus exhausted his remedies. See Dixon, 714 F. Supp. 2d at 1032 18 (finding that plaintiff has adequately exhausted his § 2254 claim after a state court denied 19 a habeas petition raising the same issues). To the extent Petitioner’s motion differs 20 slightly from the arguments raised before the state courts, the Court recognizes that “pro 21 se [habeas] petitions are held to a more lenient standard than counseled petitions.” Davis 22 v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). Respondent, moreover, “provides no basis 23 to conclude otherwise,” arguing only that Plaintiff had not raised the arguments in his 24 petition on appeal and that his two state petitions were still pending. See Cox v. Biter, No. 25 CV 13-2703-MWF, 2014 WL 1325510, at *5 (C.D. Cal. Mar. 31, 2014) (relying on 26 movant’s failure to articulate another counterargument as the basis for finding 27 1 ||exhaustion). As is clear from Plaintiffs submission following the motion to dismiss, that 2 no longer the case. (ECF No. 15.) 3 CONCLUSION 4 Based on the above, the Court ADOPTS the Magistrate Judge’s Report 5 || DENYING Respondent’s motion to dismiss and DENYING AS MOOT Petitioner’s 6 request for a stay. 7 IT IS SO ORDERED. 8 Dated: July 27, 2020 9 Hon. athe Coke 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3:19-cv-02191-GPC-MDD