United States District Court, C.D. California
WILLIAM B. WASHINGTON, Petitioner,
JOHN N. KATAVICH, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S.
V. SELNA U.S. DISTRICT JUDGE
28 U.S.C. § 636, the Court has reviewed de novo the
Petition, the records on file, and the May 17, 2016 Report
and Recommendation of U.S. Magistrate Judge. The R&R
recommends that Petitioner's motion for a stay under
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as
amended), overruling on other grounds recognized by
Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007),
be denied because he did not move to dismiss his unexhausted
claims. (See R&R at 7.) It further
recommends that the Petition be dismissed as mixed unless
within the time for filing objections Petitioner showed that
it was fully exhausted or dismissed his unexhausted claims.
(Id. at 1, 7.) On May 19, 2016, Petitioner lodged a
proposed first amended petition ("Proposed FAP"),
and on June 9, he filed Objections to the R&R, arguing that
his state-court remedies were exhausted by virtue of his
November 2015 state supreme-court habeas petition, which he
attached as an exhibit.
has failed to show that his original Petition is fully
exhausted. Rather, the Petition raises several claims that
were never presented to the state supreme court, including
that (1) the trial court erred by including gang and gun
enhancements when sentencing Petitioner on an
attempted-murder conviction because "[t]he court cannot
sentence Petitioner to both enhancements" (Pet. at 9);
(2) the trial court committed Doyleerror because
Petitioner "had a right to remain silent"
(id. at 13); (3) the trial court "violated
clearly established state and federal law" by not
"charging the jury with the lesser included jury
instruction" (id.); (4) the trial court erred
by "not considering the med[ium] term sentencing
factors" (id.); (5) Petitioner's
"statements to the booking police" should have been
"suppressed because of the unnecessary or unreasonable
delay under Federal Rule of Criminal Procedure
5(a)" (id.); and (6) trial counsel was
constitutionally ineffective for failing to
"cross-examine the arresting officers as to why they did
not take [him] to the Magistrate Judge when they finished
with booking instead of questioning him without a
lawyer" (id. at 14-15). None of those claims
were raised on direct appeal or in the November 2015 state
habeas petition. See People v. Washington, No.
E056940, 2013 WL 3776485, at *1 (Cal.Ct.App. July 18, 2013)
(stating that only issue raised on appeal was that
Petitioner's statements at booking were not admissible
under routine-booking-question exception to Miranda v.
Arizona, 384 U.S. 436 (1966)); (Objections, Ex. A at
7-46 (Nov. 2015 habeas petition)). As such, they are
unexhausted and the original Petition remains mixed.
Proposed FAP also contains unexhausted claims. Most of the
Proposed FAP is an exact copy of Petitioner's November
2015 state supreme-court habeas petition. (Compare
Proposed FAP at 7-46 with Objections, Ex. A at
7-46.) As noted in the R&R (R&R at 5), on April 13, 2016, the
state supreme court denied Petitioner's November 2015
petition with citations to People v. Duvall, 9
Cal.4th 464, 474 (1995), and In re Swain, 34 Cal. 2d
300, 304 (1949). See Appellate Cts. Case Info.,
http:// appellatecases.courtinfo.ca.gov (search for
Cal. Supreme Ct. case no. S230887).
discussed in the R&R (R&R at 6), the state supreme
court's denial of Petitioner's petition with
citations to Duvall, 9 Cal.4th at 474, and
Swain, 34 Cal. 2d at 304, signified that he had
failed to allege his claims with sufficient particularity.
See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003)
(per curiam), abrogation on other grounds recognized by
Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008); Kim
v. Villalobos, 799 F.2d 1317, 1318- 19 (9th Cir. 1986).
Because a failure to allege claims with sufficient
particularity "can be cured in a renewed petition,
" the state court's denial of a habeas petition on
that ground indicates that a petitioner's claims have not
been exhausted. See Kim, 799 F.2d at 1319; see
also King, 340 F.3d at 823 (noting that Swain
and Duvall "allow amendment to comply").
In such cases, a federal habeas court must independently
examine a petitioner's state petition and determine
whether he met the federal exhaustion standard of "fair
presentation" to the state's highest court. See
Kim, 799 F.2d at 1319-20; see also Barrera v.
Attorney Gen. of Cal., 473 F.App'x 748, 749 (9th
petitioner "fairly presented" the relevant claims
to the state court, the state court's denial is
considered a holding on the merits of the claims and they
have been exhausted. Kim, 799 F.2d at 1320.
"[F]air presentation" requires that the claims be
pleaded with "as much particularity as
of the claims in the November 2015 petition (and therefore
the Proposed FAP) are vague and unsupported by any facts; as
such, they were not pleaded with "as much particularity
as practicable." For example, Petitioner asserted that
his trial counsel was constitutionally ineffective for
failing to file "a discovery motion and a
Pitchess motion of background check of misconduct of
police" (Objections, Ex. A at 30, 46), but he
nowhere explained why such information would have been
helpful, how it would have affected his defense, or even
which police officers' records should have been sought
and on what basis. Petitioner also argued that trial counsel
was constitutionally ineffective for failing to ask for
"a copy of the warrant to listen to Petitioner's
[phone] calls" made from jail (id. at 14) or
call an "expert witness of the alleged gang
allegation" (id. at 30), but he nowhere
explained what the warrant would have shown, what an expert
witness would have testified to, or how counsel's alleged
failure to take those actions prejudiced his defense.
Petitioner asserted that the prosecutor "committed a
Brady violation [by] withholding the information
and not turning over declaration of his expert witness prior
to trial" (id. at 30), but he did not describe
the undisclosed "information" or explain what the
expert stated in his declaration or how it was exculpatory.
Petitioner also alleges that his sentence was
"illegal" because "[t]he trial court did not
impose a[n] eighty-five per cent sentence" and the
California Department of Corrections and Rehabilitation
"imposed this sentence without court authorization"
(id. at 7), but he fails to allege any facts in
support of this claim or cite a federal basis for it. Because
those claims were not "fairly presented" to the
California Supreme Court, they are unexhausted. See Shine
v. Soto, No. 1:14-CV-00021-JLT, 2016 WL 541434, at *17
(E.D. Cal. Feb. 11, 2016) (finding
ineffective-assistance-of-counsel claim unexhausted based on
"absence of detail"); Willis v. Paramo,
No. CV 14-8942-KK, 2105 WL 1383513 (C.D. Cal. Mar. 25, 2015)
(finding claims not fairly presented when petition provided
only "vague descriptions" of them). Accordingly,
the Proposed FAP, which includes those unexhausted claims as
well as some that might have been fairly presented (see
generally Proposed FAP at 7-46), is also a
Petitioner constructively filed his original Petition, in
December 2014, he has been given several opportunities to
dismiss his unexhausted claims but has not done so.
(See Jan. 26, 2015 Order Show Cause at 3-4 (finding
that Petition was mixed and informing Petitioner that he
could voluntarily dismiss unexhausted claims); Aug. 10, 2016
R&R at 9 (recommending that Petitioner's request for stay
under Rhines v. Weber, 544 U.S. 269 (2005), be
denied and noting that if R&R was accepted, Petitioner
"may elect to voluntarily dismiss all claims in the
Petition except" his exhausted one); May 17, 2016 R&R at
1 (recommending that Petition be dismissed unless Petitioner
showed it was exhausted or "move[d] to dismiss his
unexhausted claims").) Because both the original
Petition and the Proposed FAP are mixed, and because
Petitioner has elected not to dismiss his unexhausted claims,
this action must be dismissed. See Rose v. Lundy,
455 U.S. 509, 518 (1982).
having reviewed de novo those portions of the R&R to which
objections were filed, the Court accepts the findings and
recommendations of the Magistrate Judge.
THEREFORE IS ORDERED that the Petition is denied and Judgment
be entered dismissing this action.
Petitioner had repeatedly been advised
that a Kelly stay required him to first move to
dismiss his unexhausted claims. See, e.g.,
Doyle v. Ohio, 426 U.S. 610,
618-19 (1976), held that the defense cannot be impeached with
a defendant's postarrest silence ...