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Sissac v. Montgomery

United States District Court, S.D. California

May 10, 2017

Demetrius Sissac, Petitioner,
v.
W.L. Montgomery, Respondents.

          ORDER GRANTING MOTION TO STAY [ECF NO. 14]

          Hon. Jill L. Burkhardt United States Magistrate Judge

         I. INTRODUCTION

         Petitioner Demetrius Sissac, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), challenging his San Diego County Superior Court conviction of second degree murder with a firearm in case number SCE315928. (ECF No. 1 at 1; ECF No. 8-14 at 1-2.)[1] Respondent filed its Answer and Memorandum of Points and Authorities in Support of the Answer, arguing in part that the Petition should be dismissed for failure to exhaust. In response, Petitioner filed a motion seeking a stay and abeyance of the claims raised in the Petition to afford him time to exhaust his claims before the California Supreme Court (“Motion to Stay”). (ECF No. 14.) Respondent filed an opposition to the Motion to Stay, and Petitioner filed a reply thereto. (ECF Nos. 16, 18.) The Motion to Stay is presently before the Court.

         II. BACKGROUND

         A jury found Petitioner guilty of second degree murder with a firearm. (ECF No. 8-14 at 2.) The trial court sentenced him to a total term of forty years to life. (Id.) Through counsel, Petitioner separately filed both an appeal (ECF No. 8-12) and a petition for writ of habeas corpus (ECF No. 8-15) in the California Court of Appeal. The appeal consisted of evidentiary-error claims. The habeas petition alleged the trial counsel was ineffective for failing to object to the evidentiary-error claims made on appeal. (Id.) On March 3, 2015, the Court of Appeal denied Petitioner's motion to consolidate the two cases and issued separate disposition orders, affirming the judgment and denying relief. (ECF Nos. 8-14, 8-16, and 18 at 3.)

         The Court of Appeal's habeas order on Petitioner's state habeas petition was a one page disposition order that incorporated its thirty-one page disposition order denying Petitioner's appeal. The text of the habeas order was as follows:

Demetrius Sissac's petition for writ of habeas corpus has been read and considered by Justices Nares, Haller, and Mclntyre.[]
Sissac's petition relates to the claims of prejudicial evidentiary error and ineffective assistance of counsel raised in his direct appeal. For reasons explained in our opinion in the direct appeal, we reject Sissac's claims.
The petition is denied, as is appellant's motion to consolidate the petition with the appeal.

         (ECF No. 18 at 3 (footnote omitted); see also ECF No. 8-16.) The habeas order also included a single footnote that stated, “By order dated June 16, 2014, this court directed that the petition be considered at the same time as the appeal in this matter (People v. Sissac (Mar. 3, 2015, D064910) [nonpub. opn.]). We take judicial notice of that appeal.” (ECF No. 18 at 3.)

         Then, still represented by counsel, Petitioner filed a petition for review before the California Supreme Court with respect to the appeal only. (ECF No. 8-17.) Petitioner took no further state-court action on his ineffective-assistance claims - the same claims for which he seeks federal habeas relief in this case.

         III. ANALYSIS

         The Petition is comprised of the following five claims for habeas relief: (1) the cumulative impact of errors and omissions by trial counsel deprived Petitioner of his right to a fair trial; (2) trial counsel was ineffective for failing to renew at trial his pretrial objections to the admission of text messages; (3) trial counsel was ineffective in failing to specifically object to evidence of deleted text messages and telephone calls; (4) trial counsel was ineffective for conceding that Petitioner's statements in a recorded telephone call were admissible; and (5) trial counsel was ineffective in failing to object to improper lay opinion testimony by witnesses. (ECF No. 1.) Petitioner argues that he recently learned that each of these claims are unexhausted, and thus filed the Motion to Stay so that he can exhaust his claims before the California Supreme Court. (ECF No. 14, 18.)

         Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The petitioner must give the state courts a full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process, which includes seeking discretionary review. See O'Sullivan v. Boerkel, 526 U.S. 838, 841-47 (1999); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th ...


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