United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS TWO CLAIMS;
ORDER SETTING BRIEFING SCHEDULE INTRODUCTION
WILLIAM H. ORRICK, District Judge.
Petitioner Alfredo Rudy Pena seeks federal habeas relief from his state conviction. He stated four claims for relief, two of which respondent moves to dismiss. Respondent asserts that Claim 3 is unexhausted and untimely, and Claim 4 is untimely. For the reasons stated below, the motion is GRANTED, and Claims 3 and 4 are DISMISSED.
In 2009, a Santa Clara County Superior Court jury convicted Pena of first degree murder. In 2012, after being denied relief on state judicial review, he filed a federal petition for writ of habeas corpus. The Court stayed the action at his request so that he could exhaust his state judicial remedies as to some claims. Pena did not show good cause for a stay under Rhines v. Weber, 544 U.S. 269 (2005), so the Court granted a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). In that order, Pena was warned that he "must eventually show that the amendment of any newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a common core of operative facts' and Duncan v. Walker, 533 U.S. 167 (2001), by complying with the statute of limitations." (Docket No. 5 at 4.)
In 2013, at Pena's request, the Court dissolved the stay and allowed the petition to be amended to include the newly exhausted claims. In that dissolution order, the Court found the following claims cognizable: (1) the trial court's exclusion of third party culpability evidence deprived Pena of his right to due process; (2) the CALCRIM No. 376 instruction lessened the prosecutor's burden of proof; (3) the flight instruction violated his right to due process; and (4) defense counsel rendered ineffective assistance. Respondent moves to dismiss Claims 3 and 4.
I. Motion to Dismiss Claim 3 as Unexhausted
Respondent contends that Claim 3 was never presented to the state supreme court, and therefore was never exhausted. (Mot. to Dismiss ("MTD") at 3.) Respondent is correct.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). A federal district court may not grant the writ unless state court remedies are exhausted or there is either "an absence of available state corrective process" or such process has been "rendered ineffective." See 28 U.S.C. § 2254 (b)(1)(A)-(B).
A review of the record shows that although Claim 3 was presented in the California Court of Appeal, it was not in the California Supreme Court in either of Pena's petitions. (MTD, Ex. 1 at 27, and Exs. 2 and 6.) Accordingly, Claim 3 is DISMISSED.
Respondent also contends that it would be futile to allow petitioner to attempt to exhaust Claim 3 because it is time-barred. As discussed below, this is also true and constitutes a second, independent reason why Claim 3 should be dismissed.
II. Motion to Dismiss Claims 3 and 4 as Untimely
Respondent contends that Claims 3 and 4 are time-barred because the limitations period expired before they were filed. Each claim can survive only if it (A) was filed within the limitations period, or (B) relates back ...