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Throop v. Diaz

United States District Court, S.D. California

April 1, 2015

RALPH M. DIAZ, Warden, et al., Respondents.


LARRY ALAN BURNS, District Judge.

On February 26, 2014, the Court issued an order (the "Order") denying Edward Throop's petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Throop then filed a 21-page motion (the "Motion") pursuant to Fed.R.Civ.P. 59, seeking reconsideration of the denial.

"A motion for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999) (per curiam) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)). Throop's Motion shows none of these. Instead, it misrepresents the record, complains about the complexity of the case, and re-argues his claims. This order addresses the Motion's principal arguments.


General Complaints

The Motion first claims that the Court struck some of his exhibits, and openly acknowledged that it had ignored his arguments. (Motion at 2:3-6.) This is manifestly inaccurate. The Court accepted all of Throop's exhibits, and discussed them all in its order denying the petition. Contrary to Throop's assertions, the Court did not intentionally or openly ignore any of his arguments, and did not state that it was doing so. In various other places, Throop makes baseless accusations that opposing counsel, the magistrate judge, and the Court have deliberately misrepresented and distorted the record.

The Motion then reiterates Throop's complaint, which was raised and rejected earlier in the case, that the magistrate judge's report and recommendation (the "R&R") was poorly written and difficult to understand. Throop also maintains that because of the length and amount of detail in Respondent's answer and in the R&R, he was forced to file extremely lengthy briefs in order to address all the points they made. This theme is repeated throughout the Motion. It is Throop rather than everyone else who is responsible for the length of briefing and orders in this case. His initiating petition is 43 pages long, and his traverse is 130 pages long. The fact that the answer and R&R are 40 and 70 pages, respectively, is not the fault of Respondent or the magistrate judge. But more importantly, none of this affects the outcome of this case.

The Motion then raises arguments about certain exhibits pertaining to his habeas petition in California superior court (Motion at 4:1-5:20), none of which have any bearing on the outcome of this case.


The Motion argues that the Court applied incorrect standards of review and sua sponte raised exhaustion defenses never raised by Respondent. (Motion at 5:24-6:4.) Throop argues he should have been given advance notice that exhaustion was at issue, so that he could respond to it. But he does not say what he would have said, had he been notified in advance, nor does he attempt to show that he actually exhausted any claim the Court identified as unexhausted.

Throop is also wrong that the Court may not sua sponte raise the issue of exhaustion. Federal courts are not obligated to raise non-jurisdictional threshold issues such as exhaustion, but may do so. Day v. McDonough, 547 U.S. 198, 205-06 (2006). Throop is also mistaken in believing he is entitled to notice and an opportunity to be heard before the Court mentions, discusses, or relies on non-exhaustion. All that Day requires is that a court give parties a fair opportunity to be heard before dismissing a petition based on a threshold issue, and that they are not significantly prejudiced by delayed focus on the issue. Id. at 210-11. The Court is not forbidden to discuss non-exhaustion when addressing proposed new claims, or point out non-exhaustion as an alternate basis for denial of a petition. Courts may, and do, explain alternate bases for their rulings. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). In fact, the Court only discussed exhaustion in three contexts, and never as the primary basis for denying any claim.

First, Throop's objections to the R&R attempted, or appeared to be attempting, to raise several new claims never presented to the California Supreme Court or even in his petition or amended petition in this Court. The Order pointed out that Throop's claims and arguments had repeatedly changed and were not always consistent even within the same pleading, so it was sometimes difficult for courts and opposing counsel to know what his real claims were. The possible new claims included what appeared to be a new "actual innocence" claim ( see Order at 4:3-7, 6:9-19); complaints about the prison mail system ( id. at 12:18-23); new claims about his trial counsel ( id. at 21:1-7); a second "actual innocence" claim ( id. at 22:14-19), new arguments that he was intentionally shown in shackles to jurors, and that jurors pointed at him and were talking about him ( id. at 19:9-26);[1] a claim that the statute under which he was convicted was overbroad ( id. at 23:3-5); and various other new claims.[2] The Court's order pointed out that these claims were new as a way of explaining why Respondent had not argued against them earlier, and also to explain why giving Throop leave to amend his petition to add these claims would not change the outcome.

The Court identified non-exhaustion as an alternative basis for rejecting Throop's claim pertaining to a juror who, he appeared to allege, slept during the trial. The Order noted non-exhaustion as an alternative basis for the Court's ruling. ( Id. at 11:21-25) It should further be noted that in his Motion, Throop made clear he did not intend to raise any such claim. (Motion at 17:1-16.)

The Court's analysis also noted that Respondent conceded that Throop had properly exhausted all but his first claim for relief ( Id. at 3:1-11), and addressed both non-exhaustion and procedural default as bases for denying the claim. ( Id. at 6:21-7:7, 8:18-21, 9:5-7.) To be clear, exhaustion requires that a claim have been "fairly presented" to state courts, and Throop's first claim was not properly presented to the California Supreme Court. But such claims are treated as technically exhausted if the state courts would now find them procedurally barred, as is the case here. See Gulbrandson, 738 F.3d at 992. In other words, Throop's failure to properly present his first claim to the California Supreme Court meant he never exhausted it, although it is treated as procedurally barred rather than unexhausted. Id. The Court's rejection of this claim depended ...

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