United States District Court, S.D. California
OBJECTIONS TO REPORT AND RECOMMENDATION; ORDER ADOPTING REPORT AND
RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
LARRY ALAN BURNS, District Judge.
Petitioner Edward Anthony Throop was convicted in California state court of two counts of battery in connection with a prison riot, for which he received concurrent sentences of 25 years to life. He filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and (d), the petition was referred to Magistrate Judge Nita Stormes for a Report and Recommendation. Judge Stormes on February 21, 2014 issued a lengthy and detailed report and recommendation (the "R&R"), which recommended that the petition be denied.
After being granted extensions of time to file his objections, Throop filed a motion asking the Court to direct Judge Stormes to reissue her R&R. The Court denied this motion, and Throop filed a set of objections to the R&R (Docket no. 58, "Obj."), consisting of 66 pages of his own objections plus two appended declarations by other prisoners. He then submitted three supplemental sets of objections, which the Court accepted for filing. The first supplemental objections (Docket no. 60, "First Supp.") consists of 36 pages of exhibits, while the second (Docket no. 62, "Second Supp.") consists of 13 unnumbered pages divided up into paragraphs. The third (Docket no. 64) amounts to three pages of discussion of Second Supp., including Throop's request that the Court construe them liberally.
"The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). See also 28 U.S.C. § 636(b). If no objection is made, this de novo determination isn't required. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc). Because Thornton is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). But, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Throop's objections are not set down in any coherent order, and are not always entirely clear. And, as discussed below, they are not always even related to the R&R. The Court has construed them liberally in an effort to identify the gist of his claims. Where an argument was open to multiple constructions, the Court has focused on those that were potentially valid or meritorious and giving him the benefit of the doubt. That being said, it is not the Court's role to serve as Throop's advocate by making arguments for him that he himself has not made. See Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986). See also Donahue v. United States, 660 F.3d 523, 524 (1st Cir. 2011) ("The courts cannot assume the role of advocates and create arguments never made.") Among other things, this means the Court will not sift through the record or Throop's lodgments and create arguments for him.
As part of its review, the Court consulted Throop's briefing filed in the California Supreme Court, both his brief on appeal (Lodgment 11), and his habeas petitions (Lodgments 19 and 21.) His brief on appeal is particularly helpful because it was drafted by his attorney and is clearer. To exhaust his claims, as Respondent concedes he has done with respect to all but the first claim, Throop was required to present them to that court in such a way as to give the court a fair opportunity to understand and rule on them. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (explaining that exhaustion requires giving state courts a fair opportunity to correct the alleged violation of federal rights); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (holding that, to exhaust a habeas claim, a petitioner must "fairly present" his claim to state courts, including the state supreme court with powers of discretionary review).
To describe Throop's briefing before the state courts and this Court as voluminous is an understatement. By way of example, his petition in the California Court of Appeals (Lodgment 15) is 77 pages long. His first petition to the California Supreme Court (Lodgment 19) was 334 pages long. His traverse in this Court (Docket no. 39) is 130 pages long. And, as noted, his objections to the R&R total 118 pages. These documents would have been much shorter had Throop omitted barred issues and claims, and not attempted to misuse the collateral review process as a means to retry his entire case in detail. Such an approach brings with it the risk that a courts, however careful and diligent, will miss genuine and potentially meritorious issues buried in a mountain of meritless and procedurally-barred arguments. See Buenoano v. Singletary, 74 F.3d 1078, 1081 n.1 (11th Cir. 1996) (disapproving of habeas petitioners' practice of filing overly lengthy, conclusory briefing, and noting that courts are hard pressed to locate the real claims in such documents).
The Court's order of May 9, 2014 cautioned Throop against this approach, instructing him that he should not raise every critique he might have about R&R, but instead should point out significant errors that could affect the outcome of the case. (Docket no. 53, 1:20-2:2.) It is also apparent Throop's counsel on appeal told him something similar, because he complains about his appellate briefs having failed to raise all the points he told his counsel to include. The Court has, of course, reviewed all the objections carefully, and presumes that the state courts reviewed Throop's briefing carefully as well.
It is also worth pointing out that in their various iterations, his claims and supporting arguments change from one brief to another, and often even within briefs, putting courts in the difficult position of trying to hit a moving target by discerning his real argument. To the extent Throop is presenting new arguments to this Court that weren't fairly presented to the California Supreme Court, this Court lacks power to grant relief.
Throop was also required to present his claims to the state courts in a context in which the claims would be considered on the merits. Castille v. Peoples, 489 U.S. 346, 351-52 (1989). Presenting them in some other context does not exhaust them.
Although Throop argues for an evidentiary hearing, such a hearing is not authorized for claims adjudicated on the merits in state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400-1401 (2011). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. Evidence presented for the first time in this Court would, therefore, have no bearing on the Court's review under § 2254(d)(1). See id. at 1400. As a result, evidentiary hearings pursuant to 28 U.S.C. § 2254(e)(2) are inapplicable to claims decided on the merits in State court. Id. at 1401.
The standards governing habeas relief are set forth in the R&R, and the Court does not repeat them here except as necessary for purposes of discussion.
Grounds for Relief
Throop's petition raises six general grounds for relief, some with sub-claims, and with a good deal of overlap. First, he argues he was denied a fair trial because the government interfered with his ability to present witnesses. Second, he says he was deprived of due process because of a juror's (Juror no. 2's) misconduct. Third, he argues his conviction occurred because of state court failures to create remedies for abuses of discretionary power. Fourth, he alleges his trial was infected by a pattern of outrageous government conduct. Fifth, he argues ineffective assistance of trial and appellate counsel. And sixth, he argues the evidence was insufficient to support his conviction. These arguments are outlined in greater detail in the R&R.
Respondent argues that although the claims are timely, the first claim is procedurally barred. Other than that, he argues Throop loses on the merits.
Although all three sets of documents Throop filed in response to the R&R are identified as objections, much of their content does not consist of specific objections. Some are highly generalized, blanket objections to the R&R as a whole. ( See, e.g., Obj. 2:1-11; Second Supp. ¶¶ 6-11). Throop also makes generalized, unsupported, or conclusory objections that the R&R is wrong and his arguments are right as to a particular claim or issue, without adequately explaining the error. ( See, e.g., Obj. at 24:15-17 (arguing that the R&R declined to address Throop's allegedly strong arguments in his traverse).) These aren't specific written objections as contemplated by 28 U.S.C. § 636(b)(1)(C), and are not sufficient to trigger de novo review. See Scofield v. Ball, 2012 WL 664769, at *1 (S.D.Cal., Feb. 29, 2012) (citing Fed.R.Civ.P. 72(b)(2)); United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007)). In any case, the Court has already ruled on these generalized objections ( see Docket no. 51), and there is no reason to reconsider that ruling.
A large portion of the objections amounts simply to factual or procedural background or clarification that doesn't disagree in any material way with the R&R. ( See, e.g., Obj. 2:13-3:7, 6:9-7:25; Second Supp. ¶¶ 3-4 13, 20, 26, 39, 40-43, 46-47, 51, 72). Throop also exerts a great deal of effort to correct what he identifies as citation or typographical errors in the R&R or other documents, or omissions from the lodgments; he asserts that these signal an overall flawed analysis, although he doesn't point to any particular material errors. ( See Obj. 3:8-6:7, 8:1-9:12; Second Supp., ¶¶ 6-9, 18.) It is clear Throop thinks the R&R was poorly written and muddled the record, and that Judge Stormes' analysis of the case was the product of her misunderstanding the record. But, even assuming these to be valid criticisms, they do not by themselves affect Throop's eligibility for relief. To the extent Throop has alleged errors he thinks affect his eligibility for relief, those objections are discussed below.
"Federal courts lack jurisdiction to consider moot questions... or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.2006) (holding that federal courts lack jurisdiction to decide moot questions or to declare principles or rules of law which cannot affect the case before the court). To the extent Throop's objections do not affect his eligibility for relief, they are moot and are therefore OVERRULED as such.
Throop also argues, without providing detail, he is actually innocent, which is a new and unexhausted claim. (Second Supp., ¶¶ 45, 108.) He is not arguing actual innocence as a way of avoiding a time bar or other procedural obstacle, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), because the claims in his petition are concededly timely and mostly exhausted. That being said, he cannot at this point raise an unexhausted actual innocence claim, particularly not without pointing to some new evidence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that an actual innocence claim must be supported by new reliable evidence). See also House v. Bell, 547 U.S. 518, 555 (2006) (concluding that, whatever burden a freestanding claim of innocence would require, it would higher than that required in Schlup for a "gateway" innocence claim). To the extent Throop's objection is that he is actually innocent, this objection is OVERRULED.
Throop argues he was deprived of his Sixth and Fourteenth Amendment rights because the government interfered with his ability to obtain favorable witnesses and present their testimony at trial. The R&R discusses this (R&R, 17:4-22:11) and Throop objects at length. ( See Obj., 9:17-10:14, 10:15-16, 10:15-23, 11:15-18, 12:25-26, 13:16-17, 13:20-22; see also id. at 11:4-6, 11:18-20, 12:18-19 (factual recitation).) The claim focuses on the testimony that Throop believes would have been offered by a fellow inmate and co-defendant, George Garcia.
Although Throop raised this claim in filings with lower state courts, he raised it only once before the California Supreme Court, in his second petition. ( See Lodgment 21.) This is important, because in order to exhaust this or any claim, Throop was required to properly present it to the California Supreme Court. See Baldwin, 541 U.S. at 29. While arguments contained in Throop's other filings, and other courts' decisions on his claims can be illuminating, only claims properly presented to the California Supreme Court can serve as a basis for federal habeas relief.
A guard, Lt. Hunt, had identified Throop and Garcia as having pepper-sprayed guards during a prison uprising. Both Throop and Garcia were offered a plea deal, which only Garcia accepted. Throop's trial counsel didn't subpoena Garcia, and Garcia didn't testify on Throop's behalf. Throop believes this was because, while Garcia's plea agreement didn't forbid him to testify, prosecutors intentionally induced Garcia not to testify. (Lodgment 21 at 3a (arguing that Throop's trial counsel should have alleviated Garcia's concerns about testifying), 4 (alleging that prosecutors intentionally induced Garcia not to testify)). Specifically, Throop believes Garcia was afraid that if he testified and incriminated himself, the prosecution might renege on its plea deal. (Id. at 4.) Someone,  he says, advised Garcia to stand on his Fifth Amendment privilege if called to testify. (Id. ) Allegedly, prosecutors had learned that Garcia's testimony would have exculpated Throop. (Id. at 4a, 4b.)
Throop's declaration in support of his argument (Lodgment 21, Ex. F) tells a somewhat different story. In it, he says Garcia's plea agreement didn't prevent him from testifying, but that Garcia became reluctant after entering into it, and Throop believes this was because Garcia was afraid of what prosecutors would do to him. ( Id., ¶¶ 5, 8, 12, 18.) He says he doesn't know what Garcia's testimony would have been except that it would have exculpated him without inculpating Garcia. ( Id., ¶¶ 6, 11, 12.)
This was rejected with a citation to In re Clark, 5 Cal.4th 750, 767-69 (1993), People v. Duvall, 9 Cal.4th 464, 474 (1995), and In re Swain, 34 Cal.2d 300, 304 (1949). The pinpoint citations stand for various grounds: Clark -successive petitions; Duvall and Swain - failure to plead facts with particularity, so as to make out a prima facie case. In other words, the pinpoint Clarke citation shows the court found Throop could have presented this claim in his earlier petition but failed to do so. This amounts to procedural default, and Respondent has made his case that denial of this claim rests on an independent and adequate state law ground. See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Throop's objections don't address this, but treat this as pertaining to the petition's timeliness (Obj. at 9:17-10:14), which is wrong. Because Throop hasn't presented any argument evidence, specific allegations, or anything else that would draw the adequacy of this state ground into question, he hasn't met his burden under Bennett and the claim is procedurally defaulted and unexhausted.
On the merits, the California Supreme Court's decision was also reasonable. Throop's own trial counsel didn't subpoena or call Garcia as a witness, and Throop wasn't able to say what Garcia's testimony would have been. He also asserts that Garcia's plea agreement didn't forbid him from testifying at Throop's trial, but that Garcia was reluctant to testify because he might incriminate himself and suffer the consequences. No provisions of the plea agreement that might have prevented Garcia from testifying are alleged. The threadbare allegations don't make out a prima facie case. If anything, they suggest that Garcia was acting in his own self-interest and not at prosecutors' behest. The California Court of Appeals' decision, which is the last reasoned order, agrees with this.
Throop spends several pages objecting that this claim is timely (Obj. at 10:15-12:23), but that isn't at issue; Respondent has conceded that it is timely. The R&R explained procedural default, and the shifting of burdens. (R&R, 15:8-17:2.)
Throop's objections argue that Garcia has now become available as a witness, and attaches Garcia's declaration to his objections. (Docket no. 58 at 69-71.) Even if the Court could consider this, it would not help Throop, primarily because it doesn't exculpate him. The only thing Garcia has to say about the disturbance is that he (Garcia) was far away from the place where the pepper spray incident occurred, and also that pepper spray was never taken from guards. ( Id., ¶¶ 10-14.) This is not persuasive, because it contradicts Garcia's own guilty plea; because it does not square with Throop's declaration; and because, at most, it would show some details of the prosecution's theory (such as where the prisoners obtained the pepper spray) were ...