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Pryor v. Spearman

United States District Court, E.D. California

July 5, 2017

MICHAEL B. PRYOR, Petitioner,
v.
M. SPEARMAN, Respondent.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for marijuana cultivation, possession for sale, and transportation. (ECF No. 1.) Petitioner is presently proceeding on his second amended petition. (ECF No. 60.) Petitioner filed a motion to stay this action while exhausting three of his claims in state court. (ECF No. 61.) Respondent moved to dismiss this action. (ECF No. 63.) Respondent's motion to dismiss doubles as an opposition to the motion to stay. (Id.) Petitioner opposes the motion to dismiss. (ECF No. 67.) Respondent filed a reply memorandum in support of the dismissal motion. (ECF No. 69.) The court held oral argument on the motions and took the matters under submission. (ECF No. 70.) The parties have consented to full magistrate judge jurisdiction. (ECF Nos. 7; 17.)

         For the reasons set forth below, petitioner's motion for a stay is granted and respondent's motion to dismiss is granted in part and denied in part.

         I. Background

         Petitioner was convicted of marijuana cultivation, possession for sale, and transportation, based on charges that he cultivated marijuana in several locations. (ECF No. 60 at 2.) He was sentenced to a state prison term of nine years, including four years and eight months for on-bail enhancements.[1] (Id.) Three on-bail enhancements were later stricken by the state court of appeal. (Id.) Petitioner has now completed his prison term but remains on parole. (Id.) He was in state prison custody at the time the initial federal habeas petition was filed.

         Immediately following his conviction and sentencing, petitioner filed a timely appeal with the Third District of the California Court of Appeals. (Id.) On August 28, 2012, the state court of appeal affirmed the conviction, but ordered multiple on-bail enhancements stricken. (Id. at 3.) A timely Petition for Review was filed with the California Supreme Court. (Id.) The Petition for Review was denied without comment on October 31, 2012. (Id.) The time for seeking certiorari review lapsed on January 30, 2013.

         Petitioner filed his first state habeas action in Tehama County Superior Court on December 20, 2013. (Id.) In that petition, it was argued that (1) petitioner received ineffective assistance of counsel for failure to obtain aerial photographs which were taken by a police agent prior to the issuance of the search warrant for petitioner's properties; (2) a defense witness was arrested during trial and threatened with prosecution as a means of making her unavailable as a defense witness; and (3) the prosecution violated its responsibility to disclose exonerating evidence. (Id. at 3-4.) That petition was denied on December 20, 2013. (Id. at 4.) An amended petition was filed and denied by order on February 5, 2014. (Id. at 4.)

         On February 7, 2014, the same claims were raised in a habeas corpus petition in the Third District of the California Court of Appeal. (Id.) That petition was denied on February 13, 2014. (Id.) A habeas petition raising the same or similar claims was filed in the California Supreme Court on April 10, 2014, and that petition was denied on May 14, 2014. (Id.)

         A. Initial Federal Petition

         A timely habeas corpus petition was filed in this court on a pro se basis on June 26, 2014. (ECF No. 1.) This petition was identical to the petition filed in the California Supreme Court. It raised three issues: (1) ineffective assistance of state trial counsel for failure to interview and subpoena witnesses, failure to lay a proper foundation for the medical marijuana defense, and failure to obtain aerial photographs whose existence became known during the jury trial; (2) prosecution misconduct for harassment of a defense witness, causing her to become unavailable to testify; and (3) prosecution failure to disclose exonerating evidence including the lease/sale agreement for the property, the Proposition 215 authorizations for the cultivation, evidence that the property was in foreclosure, and aerial photographs obtained by a civilian police agent. (Id.)

         This petition was initially dismissed as untimely on July 28, 2014; however, petitioner, through counsel, filed a motion for reconsideration, which was granted on August 11, 2015. The court found that the initial filing could be liberally construed as petitioner asking the court to accept the state petition as his federal petition, subject to later amendment. (ECF No. 38.) The clerk of the court was directed to revise docket entry number 10 as “Amended Petition for writ of habeas corpus.” (Id.)

         On October 14, 2015, counsel was appointed to represent petitioner in this court. The matter was thereafter continued for discovery and to prepare a second amended petition. (ECF No. 43.)

         B. Second Amended Petition

         On September 9, 2016, through counsel, petitioner filed his second amended habeas petition. (ECF No. 60.) Generally, petitioner claims that he was denied his federal constitutional rights to due process and effective assistance of counsel. (Id. at 6.) The petition raises the following five claims:

(1) Petitioner was denied Due Process by the state court decision denying a hearing and rendering him unable to challenge the July 30, 2009, search of his properties;
(2) Petitioner was denied Due Process by the lack of a record of events in the courtroom while the judge and the attorneys were in chambers;
(3) Petitioner was denied Due Process by the lack of a record of events in chambers while the judge and the attorneys discussed a defense objection;
(4) Petitioner was denied effective assistance of counsel guaranteed by the Sixth Amendment, due to (a) failure to preserve a record of events in the courtroom during the in chambers colloquy; (b) failure to preserve a record of oral proceedings in chambers; (c) failure to enter the search warrant into the record; and (d) failure to introduce documentation of the county policies enforcing the Medical Marijuana Program;
(5) Petitioner was denied Due Process by threats to prosecute a defense witness, Tanya Hale. (Id. at 6-7.)

         C. Motion to Dismiss

         Respondent moves to dismiss the first four claims of the second amended petition on several grounds. (ECF No. 63.) Respondent argues that claims one through four are untimely and must be dismissed with prejudice. (Id. at 8-15.) Respondent further argues that claims two through four are unexhausted and must be dismissed on that ground as well. (Id. at 16-17.) And finally, respondent asserts that claims one through three must be dismissed because they fail to state a claim upon which relief can be granted. (Id. at 17-19.)

         In the remainder of the motion, respondent states his opposition to petitioner's request for a stay to exhaust claims one through four in state court, as well as argues that granting a stay to exhaust would be futile. (Id. at 19-23.)

         II. Legal Standard for Motion to Dismiss

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept as true the allegations of the complaint, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

         The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts that may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and similar papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

         III. Legal Analysis of Motion to Dismiss

         A. Timeliness of ...


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