United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a).
Respondent previously moved to dismiss the operative First Amended Petition, contending that petitioner had failed to exhaust all of his claims for relief at the state level. By order filed January 8, 2015, the court denied respondent's motion to dismiss and granted petitioner leave to file a motion for a stay of this action while he exhausts the unexhausted claims. On February 7, 2015, petitioner filed a motion for stay. (ECF No. 44.) Respondent filed an opposition (ECF No. 45), and petitioner filed a reply (ECF No. 46). For the reasons set forth below, the court grants petitioner's motion for stay.
A. Factual Background
The facts underlying petitioner's conviction are set forth in an opinion of the California Court of Appeal which addresses petitioner's appeal:
In July 2008, a group of four teenagers beat the victim. He knew two of them by sight from his neighborhood, and did not have any history of animosity with them. He knew one of them was involved in a gang active in the neighborhood. He was scheduled to testify against them in a juvenile court proceeding on August 14, 2010.
At some point between the attack and the scheduled court proceeding, the victim bought some cigarettes at a market and was going to walk to his girlfriend's home around the corner. Two men intercepted him at the corner. One of them asked him to wait and talk with them for a minute. They flanked him as they walked with him across the street to the front of a duplex where defendant lived with his girlfriend and children.
The speaker made a reference to the previous attack on the victim and the imminent juvenile court date, and said the juveniles should not be going back to court. The speaker said that what happened in the street should stay in the street. He said, if the victim stayed out of court, "the whole incident with [the four guys] would be dropped and everything would be squashed" without any further repercussions. However, he said, "[I]f [the victim] went to court, [he] didn't know what would happen." The victim identified defendant as the spokesman for the duo. His silent partner was tall and muscular. As he had with two of the four juvenile assailants, the victim had previously seen defendant around the neighborhood (and was aware that he lived in the duplex), and there had not been any past conflicts with him. The victim had not previously associated defendant with the attackers or the neighborhood gang, but it was clear to him that defendant was making reference to the attack on the victim and the imminent court date involving it. The victim saw a tattoo on defendant that he associated with the gang that was active in the neighborhood.
The victim "looked at both of them and said yeah. Because I really didn't want to sit there and tell them no." The victim felt threatened because the two men had approached him in such a way that he did not feel he had any choice about talking to them, and then they walked on either side of him. The victim believed that there would be physical action against him "[i]f not on that day, later...." The two men then went into defendant's duplex.
The victim could not recall the exact date of the incident. He was certain it had happened in the late afternoon, and it was likely a weekday because he did not recall any children running around. He first reported the incident to an officer who had come to bring him to the juvenile court on August 14 after he failed to appear. He told the officer that defendant's conduct made him think that defendant was a "shot caller" for the gang. The victim told the officer he was reluctant to testify as a result, and testified he was also reluctant to testify in the present criminal proceedings. He was aware that people who testified against gangs got beaten. When the officer appeared at the hearing with the victim, the two juveniles entered pleas.
An officer testified that one of the juveniles was a self-admitted member of the gang active in the neighborhood; another was an active gang member as well. He also offered the opinion that defendant was a member of the gang, based on his observations over the course of more than 10 years of things such as defendant's "[t]attoos. [His] history with the Ripon Police Department. The attire he wears. His haircut. And the way he presents himself and who he hangs around with on the streets." The officer was aware that defendant associated with at least one of the juveniles who attacked the victim. Defendant told the officer that he was not an active gang member in August 2008, and the officer could not document any evidence of active gang membership since March 2007 other than the addition of a tattoo. The officer nonetheless believed that defendant was simply being evasive.
People v. Estrada, No. C061694, 2010 WL 3247866 at *1-2 (Aug. 18, 2010).
B. Procedural History On February 17, 2009, a jury convicted petitioner of the crime of dissuading a witness
(Cal. Penal Code § 136.1(a)), with enhancements for committing the crime for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)) and for being an active participant in a criminal street gang (Cal. Penal Code § 186.22(a)). Petitioner was initially sentenced to a term of 7 years to life. Estrada, 2010 WL 3247866 at *1. Petitioner was represented at trial by attorney Armando Villapadua. (First Amended Petition ("FAP"), ECF No. 31 at 28.)
On April 22, 2009, petitioner filed a timely notice of appeal with the California Court of Appeal for the Third Appellate District, case no. C050173. In his appeal, petitioner raised three claims: (i) insufficient evidence to support petitioner's conviction for dissuading a witness; (ii) trial court error in failing to strike a finding regarding petitioner's prior conviction; and (iii) sentencing error. (The first of these claims is the sole claim originating from the direct appeal that is presented in the operative First Amended Petition.) On August 18, 2010, the Court of Appeal affirmed petitioner's conviction, but remanded the case to the trial court for resentencing and imposition of an indeterminate life sentence of 14 years to life. Estrada, 2010 WL 3247866 at *4. On October 27, 2010, the California Supreme Court issued a summary denial of petitioner's appeal. See People v. Estrada, No. S186583. (FAP, ECF No. 13 at 17.) Petitioner was represented on direct appeal by attorney Athena Shudde. (Exh. D to FAP, ECF No. 31-4 at 1-3.)
On February 1, 2011, petitioner filed a pro se petition for writ of habeas corpus with the San Joaquin Superior Court, raising three claims: (i) insufficient evidence to support petitioner's conviction; (ii) utilization of an unduly suggestive procedure, resulting in the victim's identification of petitioner; and (iii) insufficient evidence to support petitioner's conviction for active participation in a street gang. (Order Denying Petition for Writ of Habeas Corpus, ECF No. 13 at 17-19.) On February 16, 2011, the Superior Court denied the petition, writing:
Petitioner's latter claims relating to the sufficiency of the evidence and reasonable doubt fail because they are not within the scope of the habeas corpus remedy. Sufficiency of the evidence claims are not cognizable on habeas corpus. In re Lindley (1947) 29 Cal.2d 709, 722-723. Habeas corpus is not available to re-litigate factual matters determined adversely to petitioner or to weigh the evidence supporting the judgment. In re Dixon (1953) 41 Cal.2d 756, 760; In re La Due (1911) 161 Cal.732, 635-636.
Petitioner's claim relating to the identification procedure also fails because it was not raised on appeal. According to the petition, petitioner did not raise the identification issue on appeal because it was outside the record and because his counsel during the appeal was ineffective.
The identification procedure, however, was within the record on appeal. Indeed, in the Court of Appeal's decision, it noted that "[petitioner] does not challenge the sufficiency of the victim's identification of him. We therefore omit any disputes in the testimony regarding this issue, or regarding his defense of alibi." (Fn. 3.) Accordingly, petitioner does not demonstrate any exception to the general rule that a court will dismiss a habeas petition if it alleges an issue that could have been, but was not raised, on direct appeal. In re Harris (1993) 5 Cal.4th 813, 829; In re Dixon (1953) 41 Cal.2d 756, 759.
Moreover, petitioner's conclusory allegations are insufficient to demonstrate a prima facie showing of ineffective assistance of counsel. Strickland v. Washington (1984) 466 U.S. 668, 690; People v. Jackson (1980) 28 Cal.3d 264, 288-293. Petitioner has not set forth any facts showing that his appellate counsel failed to investigate either the facts or the law in the manner required of a reasonably competent, diligent and conscientious advocate. People v. Jackson, supra, 28 Cal.3d at 288.
Based on the foregoing, the petition is denied.
(Id.) Petitioner did not appeal the denial of the petition to the California Court of Appeal.
Instead, on October 31, 2011, petitioner filed his initial petition for writ of habeas corpus with this court. On December 9, 2013, the court appointed counsel for petitioner. (ECF No. 23.) Subsequently, on May 9, 2014, petitioner filed his First Amended Petition. (ECF No. 31.) Petitioner therein raised four claims: (i) insufficient evidence to support petitioner's conviction (id. at 14); (ii) ineffective assistance of trial counsel for failing to move to suppress the results of an unduly-suggestive identification procedure (id. at 13); (iii) ineffective assistance of trial counsel for failing to challenge a juror for cause (id.at 13-14); and (iv) insufficient evidence to support petitioner's conviction for active participation in a street gang (id. at 14). As noted above, only the first of these four claims was properly exhausted in state court.
On August 26, 2014, respondent filed a motion to dismiss the First Amended Petition on the grounds that it contains unexhausted claims. (ECF No. 33.) On December 18, 2014, the court held a hearing on the motion to dismiss, and subsequently issued an order denying the motion. (ECF No. 43.) The court therein found - based on the fact California courts recognize an actual innocence exception to the bar against untimely claims and against claims that should have been raised on direct appeal - that state court remedies were potentially still available to petitioner, and therefore, that petitioner's claims were not technically exhausted. Id. at 8 (citing In re Reno, 55 Cal.4th at 473-74). Petitioner subsequently filed the instant motion for stay, which respondent opposes. The parties' arguments are considered in turn below.
The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509, 515 (1982). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
Two procedures are available to federal habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. The "Kelly procedure, " outlined in Kelly v. Small, 315 F.3d ...