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Lucas v. Davis

United States District Court, S.D. California

May 5, 2017

DAVID ALLEN LUCAS, Petitioner,
v.
RON DAVIS, Warden of San Quentin State Prison, Respondent.

          ORDER (1) FINDING SUBCLAIMS 2.E.7 AND 7.E.1 EXHAUSTED; (2) GRANTING PETITIONER'S MOTION TO STAY THE FEDERAL CASE PENDING EXHAUSTION OF REMEDIES [ECF NO. 62]; AND (3) SETTING DEADLINES

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.

         On January 13, 2017, the parties filed a Joint Statement regarding exhaustion and a proposed briefing schedule on stay and abeyance, and agreed that the federal Petition is a mixed petition, as it contains both exhausted and unexhausted claims. (ECF No. 56.) In the Joint Statement, the parties also agreed on and stipulated to the exhaustion status of all but two claims raised in the federal Petition, which the Court addresses below in the instant Order. On February 16, 2017, Petitioner filed a Motion to stay the federal proceedings pending the exhaustion of remedies, which included a memorandum of points and authorities. (ECF No. 62.) On March 1, 2017, Respondent filed an Opposition to the motion, and on March 15, 2017, Petitioner filed a Reply. (ECF Nos. 63, 66.)

         In the joint statement, the parties stated their agreement that “unless the Court desires oral argument on the disputed claims and/or Petitioner's motion for a Rhines stay, both questions may be decided on the pleadings.” (ECF No. 56 at 7.)[1] The Court finds that the issues presented here are suitable for decision without argument.

         For the reasons discussed below, and based on the arguments presented in the pleadings, the Court FINDS that subclaims 2.E.7 and 7.E.1 are both exhausted, GRANTS Petitioner's motion to stay the federal case pending the exhaustion of state remedies, and SETS deadlines as outlined below.

         I. PROCEDURAL HISTORY

         In a Consolidated Information filed July 11, 1988, Petitioner was charged with first degree murder in the deaths of Suzanne Jacobs, Colin Jacobs, Gayle Garcia, Rhonda Strang, Amber Fisher, and Anne Swanke in violation of Cal. Penal Code § 187, the attempted murder of Jodie Santiago Robertson in violation of Cal. Penal Code §§ 187 and 664, and the kidnappings of Swanke and Robertson in violation of Cal. Penal Code § 207(a). (CT 4107-11.) The Consolidated Information also charged that Petitioner had used a knife in each crime within the meaning of Cal. Penal Code § 12022(b), and that he had inflicted great bodily injury on Swanke and Robertson in the commission of their kidnappings, and on Robertson in the commission of the attempted murder, within the meaning of Cal. Penal Code § 12022.7. (Id.) Petitioner was also charged with the special circumstance of multiple murder under Cal. Penal Code § 190.2(a)(3), and it was alleged that he had a serious prior felony conviction for rape. (Id.)

         On June 21, 1989, after the guilt phase proceedings and deliberations, the jury found Petitioner guilty of the first degree murders of Suzanne Jacobs, Colin Jacobs and Anne Swanke, the attempted murder of Robertson and the kidnappings of Swanke and Robertson. (CT 14232-33, 14236-39.) The jury was unable to reach a verdict with respect to the Strang and Fisher murder charges and acquitted Petitioner of the murder of Garcia. (CT 5563-64, 14234-35.) The jury found true the allegations that Petitioner used a deadly and dangerous weapon in the murders and kidnappings and that he inflicted great bodily injury on Swanke and Robertson. (CT 14232-33, 14236-39.) The jury also found true the special circumstance charge of multiple murder. (CT 14240.) On August 2, 1989, after the penalty phase proceedings and deliberations, the jury returned a verdict of death. (CT 14861.) On September 19, 1989, Petitioner was sentenced to death. (CT 14998.)

         On automatic appeal of his conviction and judgment to the California Supreme Court, Petitioner filed an opening brief on August 15, 2003. (Lodgment No. 6.) Petitioner filed a reply brief on May 21, 2008, and on May 5, 2014, filed a supplemental brief prior to oral arguments. (Lodgment No. 8.) The California Supreme Court affirmed Petitioner's conviction and sentence in a written decision issued on August 21, 2014. People v. Lucas, 60 Cal.4th 153 (2014), disapproved of by People v. Romero, 62 Cal.4th 1 (2015). The petition for a writ of certiorari was denied by the United States Supreme Court on June 1, 2015. Lucas v. California, __U.S.__, 135 S.Ct. 2384, No. 14-9137 (2015).

         On November 6, 2008, while the direct appeal was pending, Petitioner filed a habeas petition with the California Supreme Court. (Lodgment No. 12.) On March 22, 2010, Petitioner filed a reply brief. (Lodgment No. 15.) On November 24, 2015, the California Supreme Court denied the habeas petition without an evidentiary hearing. (Lodgment No. 16.)

         On January 13, 2017, the parties filed a Joint Statement stipulating to the exhaustion status of all but two claims raised in the federal Petition, outlining their positions on the two disputed subclaims, and agreeing that the Petition contained both exhausted and unexhausted claims. (ECF No. 56.) On February 16, 2017, Petitioner filed a Motion [“Mot.”] to stay the federal proceedings pending the exhaustion of remedies, which included a memorandum of points and authorities. (ECF No. 62.) On March 1, 2017, Respondent filed an Opposition [“Opp.”] to the motion for stay and abeyance. (ECF No. 63.) On March 15, 2017, Petitioner filed a Reply. (ECF No. 66.)

         II. DISCUSSION

         A. Exhaustion

         “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971).

         “The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999), citing Duncan v. Henry, 513 U.S. 364, 365 (1995) and Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998); see also Picard, 404 U.S. at 276 (“We emphasize that the federal claim must be fairly presented to the state courts. . . .The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”)

         The parties agree that eleven claims or subclaims in the federal Petition remain unexhausted, including Claims 10.D, 12, 13.B.2, 13.B.5, 13.B.6, 35.M, 50.H, 50.L, 50.M, 52 and 53, but “do not agree as to whether subclaims 2.E.7 and 7.E.1 are exhausted; Respondent believes they are not, and Petitioner believes they are.” (ECF No. 56 at 2.) Based on the parties' stipulation, the Court found Claims 10.D, 12, 13.B.2, 13.B.5, 13.B.6, 35.M, 50.H, 50.L, 50.M, 52 and 53 unexhausted and took the disputed claims under submission. (ECF No. 57.).

         1. Claim 2.E.7

         In the federal Petition, subclaim 2.E.7 is entitled: “The Fingerprint Evidence Should Have Been Excluded Under the Daubert[2]/Kumho[3] Standard.” (ECF No. 45 at 202.) In this subclaim, Petitioner recites the standard and asserts that “the expert handprinting evidence introduced against him at trial should have been precluded by Daubert and Kumho because the methodology underlying the development of the fingerprint evidence was unreliable and scientifically invalid, ” and points out that “[s]ince the Daubert/Kumho test is more liberal in favor of admissibility, any evidence that cannot satisfy Daubert also cannot satisfy Kelly, a fortiori. Leahy, 8 Cal.4th at 595, 603.” (Id. at 203 and n.80.)

         Petitioner maintains that he exhausted this contention by raising it in the opening brief on direct appeal, as Claim 2.5.4, and in that claim “discussed the Daubert and Kumho decisions and their impact on the admissibility of expert scientific evidence in state and federal court.” (ECF No. 56 at 5.) Respondent argues that “Lucas did not fairly present to the California Supreme Court the question of whether Daubert and Kumho required exclusion of the handprinting evidence, ” and that in Claim 2.5.4, “Lucas argued he was entitled to a hearing to determine the reliability of the handprinting evidence proffered by the prosecution-known in California as a Kelly hearing-and that the failure to provide him that hearing was a denial of his constitutional rights.” (Id. at 3.) In response to Petitioner's assertion that he cited to both cases on direct appeal, Respondent argues that “the citations to those cases were offered in support of Lucas's argument that he should have been granted a Kelly hearing; Lucas never made the separate claim that those cases required the California Supreme Court to conclude, regardless of whether there was a Kelly hearing, that the admission of the prosecution's evidence was erroneous.” (Id. at 3-4.)

         The claim raised on direct appeal, argument 2.5.4, was entitled: “The Judge Erroneously Denied a Kelly Hearing.” (ECF No. 35-87 at 47.) Petitioner asserted that Kelly applied to handprinting evidence and alleged that the trial judge erred in precluding defense counsel from challenging the admission of that evidence under Kelly. (Id.) However, in the course of arguing that the trial court erred in failing to allow the defense to challenge the introduction of the handprinting evidence under Kelly, Petitioner also clearly asserted that the handprinting evidence should have been excluded. (Id. at 50-51, 63-67.) Indeed, a review of the state court pleadings reflect that Petitioner's argument that a Kelly hearing was necessary was premised on the assertion that the handprinting evidence would not have been admitted at trial had the trial court properly considered the reliability of the evidence.

         Petitioner also clearly presented argument to the California Supreme Court about the relevance of Daubert and Kumho to an analysis of the issue, and specifically asserted that an application of those two cases would have precluded admission of the evidence, as follows: “[S]ince the Daubert/Kumho test is more liberal in favor of admissibility, any evidence that cannot satisfy Daubert also cannot satisfy Kelly, a fortiori.” (ECF No. 35-87 at 50.) In the direct appeal brief, Petitioner also discussed People v. Leahy, 8 Cal.4th 587, 594 (1994), in which the state supreme court reaffirmed an intention to apply Kelly in the wake of Daubert, and argued that: “Since the Court explicitly held that Kelly is more cautious, conservative, and austere than Daubert, it follows that a technique that cannot pass muster under Daubert certainly must fail the more stringent Kelly test.” (ECF No. 35-87 at 50-51, n. 339.) Petitioner also pointed out that in Leahy, the state supreme court utilized several factors articulated in Daubert. (Id.) Petitioner then argued that “[t]he Daubert reliability factors are therefore highly relevant to the Kelly standard. Even aside from Kelly, these factors are relevant because ‘the reliability and thus the relevance of scientific evidence is determined . . . under the requirement of Evidence Code section 350, that “[n]o evidence is admissible except relevant evidence.[”]' (Id., at 598.) In other words, even apart from Kelly, scientifically unreliable evidence is irrelevant and hence inadmissible.” (Id.)

         Thus, while the claim presented to the California Supreme Court was centered on the trial court's failure to hold a Kelly hearing, and titled as such, within that claim Petitioner also argued, contrary to Respondent's assertion, that the admission of the handprinting evidence was erroneous and that the evidence should have been excluded. Accordingly, subclaim 2.E.7 is exhausted.

         2.Claim 7.E.1

         In the federal Petition, subclaim 7.E.1 is entitled: “The Electrophoresis[4] Evidence Should Have Been Excluded Under the Daubert/Kumho Standard.” (ECF No. 45 at 255.) In the subclaim, Petitioner argues that “the electrophoresis evidence introduced against him at trial should have been precluded by Daubert and Kumho because the methodology used by Wraxall[5] was unreliable and scientifically invalid, ” and similar to the subclaim discussed above, points out that “[s]ince the Daubert/Kumho test is more liberal in favor of admissibility, ...


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