IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 4, 2013
GABRIEL W. PRICE, PETITIONER,
MATTHEW CATE,*FN1 SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 47]
Gabriel W. Price, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Price is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has answered. Price has not replied. At Docket No. 47 Price filed a Motion to Hold the Petition in Abeyance. Respondent has opposed the motion, and Price has replied.
In his motion Price alleges that during a move from the California State Prison, Los Angeles, to the California Substance Abuse Treatment Facility in May 2010, a box containing his legal papers was lost and has not been replaced. Respondent does not dispute this fact. Price requests that this Court hold this proceeding in abeyance and order the Respondent to provide him the legal papers lost at no cost, including his trial papers and documents on appeal.
The record reflects that Price exhausted his administrative remedies
within the Department of Corrections and Rehabilitation.*fn2
At the Director Level, his appeal was denied:
A. FINDINGS: The Director's Level of Review (DLR) finds that CDC Form 128-B, General Chrono dated January 13, 2011 indicates that on said date the appellant was escorted to the SATF R&R to receive items from R&R staff. The DLR notes that the issuance of the items was to comply with the decision made at the SLR.
The DLR acknowledges that the compensation that was offered was a 13 inch RCA television valued at $149.95 and approximately $100 worth of cosmetic and canteen items. The DLR notes that the appellant refused to accept compensation and chose to take his appeal to the next level. The appellant is advised that according to California Code of Regulations, Title 15, Section (CCR) 3084.7(e)(2)(B), an appellant's refusal to accepl repair, replacement. or substitution of like items and value shall be cause to deny the appeal. Furthermore, the DLR notes that the appellant has not provided any documentation to indicate that the compensation offered by the institution did not suitably replace the items that were lost. In view of the above, justification for intervention at the DLR has not been established.*fn3 In his opposition Respondent contends that Price's motion should be denied. First, Respondent contends that because all of his grounds are unexhausted the Petition must be dismissed because Price he has not shown good cause for a stay. Second, with respect to Price's contention that Respondent should be compelled to replace his documents, Respondent argues:
While it appears that prison officials admitted their error and attempted to compensate [Price] for the value of his lost property, [Price] refused to accept the compensation and failed to provide documentation to indicate that the institution's compensation did not suitably replace the lost items. (See Exh. AA.) Certainly due diligence would have required that [Price] contact the superior court to determine the cost to recreate the record and provide that information to prison officials if he believed that he had not been offered reasonable compensation for his loss. Moreover, the lack of transcripts did not prevent [Price] from attempting to exhaust Grounds 3, 5, and 10 of the federal petition, which demonstrates that [Price] could have presented his remaining claims to the state court to satisfy the exhaustion requirement.
In addition, [Price] has failed to show that his unexhausted claims
are not plainly meritless. Regarding his claim of jury tampering
(Ground 1), [Price] has failed to identify when the incident occurred,
the document that the juror found, how the court resolved the issue,
and how he suffered any prejudice. As to his claim of juror misconduct
(Ground 2), [Price] has failed to identify when he became aware of the
alleged bias, whether the information came to light during voir dire,
or how the court responded to the allegation of juror bias. Regarding
his claim of mental incompetency (Ground 4), [Price] has failed to
attach any medical records or other evidence showing that he suffered
from a severe mental illness during the proceedings. As for his claim
that he suffered improper dual punishment in violation of double
jeopardy principles (Ground 6), [Price] has failed to identify what
conduct he received double punishment for, or what the double
punishment was, or how he was doubly punished. With regard to his
claim that the prosecutor committed misconduct (Ground 7), [Price] has
failed to reference specific instances when the prosecutor engaged in
conduct that rendered his trial fundamentally unfair, or how any
alleged misconduct had a "substantial and injurious effect or
influence on the jury's verdict." In addition, as Respondents
explained in both the original and supplemental answer, [Prices's]
claim of "state interference" (Ground 8) does not challenge the
legality of his custody and, therefore, is not cognizable on federal
habeas. And finally, with regard to his claim that the trial court
should have granted a mistrial (Ground 9), [Price] has failed to state
whether trial counsel ever made a motion for a mistrial on the basis
that the victim and a witness were present in the courtroom during
jury selection, when these individuals were in the courtroom and for
how long, whether any prospective jurors came into contact with these
individuals, or how he suffered any prejudice.*fn4 This
Court rejects Respondent's arguments. While it may be true that
Price's grounds may be at least partially unexhausted and/or
procedurally barred and possibly meritless, in the absence of his
state-court records preceding the date he filed his second petition
for habeas relief in the state courts in June 2011,*fn5
Price is not only hampered in his ability to seek habeas
relief in this Court, he was hampered in seeking relief in the state
courts in his second round of habeas petitions. While Price may very
well may have requested the superior court provide him with
an estimated cost of replacing his legal papers, Price did request that
his legal papers be returned. Nowhere in the administrative appeal
process was Price ever advised that he needed to obtain the estimated
cost of replacing his legal papers; indeed, the request for return of
his legal papers was never addressed at all. In the interests of
justice, Price must be given every reasonable opportunity to seek
appropriate relief in this Court, which includes access to the
state-court records necessary to formulate, support with factual
allegations, and cogently argue his grounds for relief. That
opportunity is severely impaired when the State declines to replace a
petitioner's legal papers that would permit the petitioner to
intelligently develop the legal issues and provide the facts
Respondent contends were omitted, papers the State was admittedly
responsible for losing. This Court would be remiss if it were to deny
Price relief on the basis of a record that, through no fault of his
own, Price does not and did not have access to at the time he filed
his Petition. The Court declines to take such action.
While replacement of those legal papers copies of which that may be obtained from the records of the California state courts is possible, Respondent obviously lacks the ability to replace Price's personal papers, e.g., his notes, research, work product and similar items that are not part of the state-court records. This Court cannot order Respondent to do an act that is a practical impossibility.
IT IS THEREFORE ORDERED THAT, within twenty-one (21) days of the date of this Order, Respondent must provide Price at no cost with copies of Lodged Documents Numbered 1 through 18, inclusive, as identified in the Notice of Lodging Paper Documents at Docket No. 44, and provide proof of service.
IT IS FURTHER ORDERED THAT Price has thirty (30) days after Respondent complies with this Order within which to serve and file his Traverse.
IT IS FURTHER ORDERED THAT to the extent that Price requests return of his legal papers that were not part of the records in the California state courts, the motion is DENIED.
IT IS FURTHER ORDERED THAT the motion for a stay is DENIED as moot.
James K. Singleton, Jr.