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David Lamar Johnson v. John Marshall*Fn1


December 9, 2010



Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2).

On March 17, 2010, respondent filed a motion to dismiss the petition, contending that the claims raised therein had not been properly exhausted. Dckt. No. 12. Petitioner then moved this court to stay his petition and hold it in abeyance to allow him to return to state court to exhaust his claims. Dckt. No. 16. Respondent opposes petitioner's request for a stay.

I. Exhaustion

A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not 'fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by,247 F.3d 904 (9th Cir. 2000). "[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief"); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution").

Petitioner filed one habeas petition in the California Supreme Court. Resp.'s Mot. to Dism., Lodged Docs. In Supp. Thereof (hereinafter "Lodged Doc."), Lodged Doc. 2. Petitioner argued that the trial court abused its discretion in sentencing him under California's Three Strikes Law and that the Three Strikes sentencing violated state and federal prohibitions on cruel and unusual punishment and double jeopardy. Id. The court denied the petition with citation to In re Swain, 34 Cal.2d 300, 304 (1949) and People v. Duvall, 9 Cal.4th 464, 474 (1995). Lodged Doc. 3.

In the instant petition, petitioner raises the following claims:

(1) that the prosecution failed to disclose evidence favorable to the defense;

(2) that his sentencing violated the federal constitutional prohibitions on cruel and unusual punishment and double jeopardy; and

(3) that he was denied effective assistance of counsel at trial, because

(a) the trial court denied his request to fire his attorney,

(b) his trial attorney failed to suppress perjured witness testimony, and

(c) he accepted a plea deal because he feared he would receive a worse outcome through trial due to his counsel's incompetence.

Pet. at 5-6. There is no question that petitioner has not exhausted claims (1) and (3), which were not included in his California Supreme Court petition. Respondent contends that claim (2) is also unexhausted, because petitioner failed to fairly present the claim to the California Supreme Court, as indicated by that court's citations to Swain and Duvall.

Duvall, at the page cited by the California Supreme Court, held that a habeas petitioner, to satisfy his or her initial pleading burden of stating grounds sufficient for relief, should "state fully and with particularity the facts on which relief is sought" and "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." Duvall, 9 Cal.4th at 474. Swain similarly held that a habeas petitioner must state with particularity the facts upon which the claim is based. Swain, 34 Cal.2d at 304. The California Supreme Court's citation to these authorities in denying a petition for writ of habeas corpus indicates the court's conclusion that the claims therein have not been stated with sufficient particularity. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Failure to state claims with sufficient particularity is a defect that can be cured by a renewed petition to the court. Id. Accordingly, where a claim could have been stated with greater particularity, the claim has not been exhausted until the petitioner files a renewed petition with the California Supreme Court curing the deficiency, and has therefore given that court the required fair opportunity to correct the constitutional violation. Id. at 1319-20. However, where the claims are incapable of being alleged with any greater particularity, "the California Supreme Court's denial for lack of particularity amounts to a holding that the claims themselves are defective" and the claims are therefore exhausted without any need to file a renewed petition in the California Supreme Court. Id.

Under Kim, this court must independently examine the petition to determine whether claim (2) was capable of being alleged with greater particularity and is therefore unexhausted. Id. at 1320. Petitioner alleged in his California Supreme Court petition:

The court that sentenced me is violating the State and Federal prohibitions on cruel and unusual punishment and the double jeopardy clause. The court is specifically violating this prohibition in a non-capital as well as capital contexts. The Eighth Amendment to the U.S. Constitution "does not require strict proportionality between crime and sentence" but rather, it forbids only extreme sentences that are grossly disproportionate to the crime. These include (1) the gravity of the sentence or offense and the harshness of the penalty; (2) the sentences imposed for commission of the same crime in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. The court never conducted a proportionality analysis of these three criteria. Thus, this prison sentence incorporating a strike sentence has violated both the Federal and State guarantees against cruel and unusual punishment. I should not be placed twice in jeopardy for the same offense.

Lodged Doc. 2 at 4. Such information was sufficient to allow the court to consider petitioner's cruel and unusual punishment and double jeopardy claims, resolution of which depended on analysis of purely legal issues based on simple facts provided by petitioner on the form petition -- his crime, prior conviction, and the length of his sentence. See Lodged Doc. 2 at 2. In other words, the petition apprised the court of the claims -- that use of his prior conviction to enhance his sentence constituted cruel and unusual punishment and double jeopardy -- and provided sufficient facts so that the claims could be analyzed. Accordingly, claim (2) was fairly presented to the California Supreme Court, and respondent's motion to dismiss that claim must be denied. See Kim, 799 F.2d at 1320-21 (finding claims fairly presented where the petitioner "reveal[ed] the substance" of one claim and where another claim "raise[d] a pure question of law.").

The court must next determine whether to dismiss unexhausted claims (1) and (3) or to stay the entire case pending petitioner's return to state court to exhaust those claims.

II. Stay

There are two approaches for analyzing stay-and-abey motions -- one provided for by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and the other by Rhines v. Weber, 544 U.S. 269 (2005). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009).

Kelly provides that a district court may stay a petition containing only exhausted claims and hold it in abeyance pending exhaustion of additional claims which may then be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 564 F.3d at 1135. If a petition contains both exhausted and unexhausted claims (a so-called "mixed" petition), a petitioner seeking a stay under Kelly must dismiss the unexhausted claims from the petition and seek to add them back in through amendment after exhausting them in state court. King, 564 F.3d at 1138-39. The previously unexhausted claims, once exhausted, must be added back into the federal petition within the statute of limitations provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140-41. Under that section, a one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

Under Rhines, a district court may stay a mixed petition in its entirety, without requiring dismissal of the unexhausted claims while the petitioner attempts to exhaust them in state court. King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the petitioner show good cause for failing to exhaust the claims in state court prior to filing the federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant to Rhines is inappropriate where the unexhausted claims are "plainly meritless" or where the petitioner has engaged in "abusive litigation tactics or intentional delay." Id.

In his motion for stay, petitioner states that he "has good cause for grant of stay and abeyance in that he has potentially meritorious claims to exhaust in the state court; among them is an actual innocence claim." Petitioner provides no explanation, however, of why he did not exhaust claims (1) and (3), and the apparently new actual innocence claim, in state court prior to filing his federal petition. As respondent notes, petitioner was aware of the factual basis of claim

(3) well prior to filing his California Supreme Court petition, because he included the claim in an earlier superior court petition. It further appears that petitioner should have been aware of the factual basis of his first claim at the time of his conviction, as his trial counsel included those facts in her sentencing arguments. As to petitioner's claim of actual innocence, petitioner provides no further information as to the basis of that claim or why it was not raised in the California Supreme Court before the filing of the instant petition.

For those reasons, the court cannot conclude that petitioner has shown good cause for failing to exhaust claims (1), (3), and the new actual innocence claim prior to the filing of his federal petition. Accordingly, the court may not stay the entire petition under the Rhines procedure and dismissal of claims (1) and (3) for failure to exhaust is appropriate. The court will stay the petition under Kelly, however, to allow petitioner to return to state court to exhaust claims (1), (3), and the actual innocence claim. Upon exhausting those claims, petitioner may seek to amend his federal petition to add the newly exhausted claims. Petitioner is cautioned that the one year statute of limitations provided by 28 U.S.C. § 2244(d)(1) applies and may preclude such amendment.

III. Conclusion and Order

For the foregoing reasons, respondent's motion to dismiss must be granted as to claims

(1) and (3). Petitioner's request for stay is granted, and this court's action on the petition's remaining claim (claim (2)) will be stayed pending exhaustion of petitioner's unexhausted claims in state court.

Accordingly, it is hereby ORDERED that:

1. Respondent's March 17, 2010 motion to dismiss, Dckt. No. 12, is granted in part, and claims (1) and (3) of the petition are dismissed without prejudice.

2. Petitioner's April 27, 2010 motion for stay, Dckt. No. 16, is granted in that the unexhausted claims in the original petition (claims (1) and (3)) are stricken pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) and this court's order on respondent's motion to dismiss, and the instant action, with only claim (2) remaining, is administratively stayed pursuant to Kelly and King.

3. Petitioner must act diligently in exhausting his state judicial remedies, or the stay may be lifted; accordingly:

a. Petitioner must file a habeas petition in the California Supreme Court raising the unexhausted claims within 30 days of the date of this order; and

b. Petitioner must file quarterly reports describing the progress of his state court proceedings and attaching copies of the cover page of any document he files with or receives from the state courts, commencing thirty (30) days from the date of this order and continuing every ninety (90) days thereafter until his state court proceedings are terminated.

c. Petitioner must file a motion to amend the petition to allege claim (2) along with the currently unexhausted claims (assuming the California Supreme Court denies habeas relief on the claims), within 60 days from the date of the California Supreme Court's decision on petitioner's habeas petition to that court.

d. Petitioner's failure to comply with this order will result in this court's lifting of the stay.

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