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Ashmus v. Davis

United States District Court, N.D. California

July 5, 2017

RON DAVIS, Warden, San Quentin State Prison, Respondent.



          THELTON E. HENDERSON United States District Judge

         Petitioner seeks to have the stay in this proceeding lifted and have the merits of the claims raised in his petition for writ of habeas corpus determined prior to the Court's retirement in August. For the foregoing reasons, Petitioner's motion is DENIED.


         Petitioner Troy Ashmus, a condemned inmate at California's San Quentin State Prison, filed a petition for a writ of habeas corpus. The Court held an evidentiary hearing on some of petitioner's claims, at which petitioner adduced evidence not previously presented to the California Supreme Court. Following the hearing but prior to post-hearing briefing, the United States Supreme Court issued Cullen v. Pinholster, 563 U.S. 170 (2011), which limits the ability of district courts to review evidence not previously evaluated by the state court. As a result, this Court sua sponte entered a stay of proceedings to allow Petitioner to return to state court to file an exhaustion petition that would present the new evidence presented in the evidentiary hearing to the California Supreme Court for consideration in the first instance.

         That court has not yet rendered a decision on the exhaustion petition; however, petitioner now asks this Court to lift the stay and decide the case on the merits because the Court's impending retirement constitutes “highly unusual circumstances” that “require that the policy favoring exhaustion give way to expeditious review” of Petitioner's claims. Mot. to Lift Stay at 5. Petitioner also argues that the extensive delay in the state court's deliberation of his exhaustion petition merits excusing any exhaustion that may be required.

         Respondent also asks for the stay to be lifted because, he argues, the claims already have been exhausted and the current proceeding in state court is unnecessary. Petitioner responds that the new evidence presented during the evidentiary hearing fundamentally altered the claims, rendering them unexhausted.


         Prisoners in state custody who wish to collaterally challenge either the fact or length of their confinement in federal habeas proceedings 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. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 510 (1982). State remedies must be exhausted except in unusual circumstances, Granberry, 481 U.S. at 134.

         If a petitioner presents the Court with new evidence that places a claim “in a significantly different and stronger evidentiary posture than it had in state court, ” it renders the claim fundamentally altered and the petitioner must present the new claim for exhaustion to the state court. Aiken v. Spalding, 841 F.2d 881, 883, 884 n. 3 (9th Cir. 1988).

         Unusual circumstances such as extraordinary delay may excuse exhaustion by rendering the process ineffective, see, e.g., Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1991) (extraordinary delay in state courts can render state corrective processes ineffective within meaning of § 2254(b) and excuse exhaustion); Phillips v. Vasquez, 56 F.3d 1030, 1037-38 (9th Cir. 1995) (prisoner's interest in reasonably prompt review of conviction outweighed jurisprudential concerns of exhaustion and abstention for prisoner whose conviction of murder had been final for ten years but whose sentence of death was still under appellate review in state court). However, “there is no talismanic number of years or months, after which due process is automatically violated.” Coe, 922 F.2d at 531.


         Petitioner's motion and the briefing in response to it present two fundamental questions: must he exhaust claims Four, Five, and Seven and, if so, may exhaustion be excused because of the California Supreme Court's delay in adjudicating his exhaustion petition.

         In the post-evidentiary hearing briefing, Respondent asserted that Pinholster barred Petitioner from using the new evidence to support his claims. See, e.g., Answering Brief Re: Claims Four and Five at 2, fn. 1 (Dkt. 502). Petitioner replied that he should be allowed to return to state court to exhaust. Reply Brief Re: Claims Four and Five at 13-14 (Dkt. 513). The cases he cited called for a return to state court because the new evidence placed the claims in question in a stronger evidentiary posture, which required exhaustion. See Aiken, 841 F.2d at 883, 884 n. 3. In his reply to Respondent's ...

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