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Wilkins v. Macomber

United States District Court, N.D. California

May 8, 2018

KEENAN G. WILKINS, Petitioner,
v.
JEFF MACOMBER, Warden, Respondent.

          ORDER GRANTING MOTION TO DISMISS AND REQUIRING CHOICE BY PETITIONER RE: DKT. NO. 53

          SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Keenan Wilkins filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction from the Alameda County Superior Court. Respondent has moved to dismiss the Amended Petition on the ground that state court remedies have not been exhausted for several of Wilkins's claims. Wilkins has opposed the motion. For the reasons discussed below, this court finds that state court remedies were not exhausted for several claims in the Amended Petition and requires Wilkins to choose how to deal with this problem.

         BACKGROUND

         Wilkins was convicted in Alameda County Superior Court of seven counts of second degree robbery, seven counts of false imprisonment by violence, and one count of making criminal threats. Docket No. 53 at 1-2. The superior court sentenced him to 100 years to life in prison on December 26, 2012. Id. at 2; Docket No. 45 at 27.

         He appealed. The California Court of Appeal affirmed the judgment of conviction. Wilkins then filed a petition for review in the California Supreme Court (Petition #1). Docket No. 53-2. The petition was denied.

         On June 24, 2015, Wilkins filed a petition for writ of habeas corpus in the California Court of Appeal. Docket No. 53-4. The Court of Appeal denied the petition. Wilkins then filed a petition for review in the California Supreme Court (“Petition #2”). Docket No. 53-6. The petition was denied.

         On November 16, 2015, Wilkins filed a second petition for writ of habeas corpus in the California Court of Appeal. Docket No. 53-8. The Court of Appeal denied the petition. Wilkins then filed a petition for review in the California Supreme Court (“Petition #3”) on January 13, 2016. Docket No. 53-10. The petition was denied.

         Wilkins then filed this action pro se. In August 2016, Wilkins amended the petition, again pro se. In February 2017, the court appointed counsel for Wilkins. In May 2017, Wilkins's counsel filed a new amended petition (the “Amended Petition”). Docket Nos. 43 & 45. Respondent has now moved to dismiss the Amended Petition, arguing that state court remedies have not been exhausted for several of the claims. Docket No. 53. Wilkins has opposed the motion to dismiss. Docket No. 54.

         DISCUSSION

         A. The Amended Petition Contains Many Unexhausted Claims

         Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state court 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).

         In considering whether state court remedies have been exhausted, “counseled petitions in state court may, and sometimes should, be read differently from pro se petitions.” Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc). Pro se filings are to be liberally construed. See, e.g., Kyzar v. Ryan, 780 F.3d 940, 948 (9th Cir. 2015) (insufficient-evidence claim was exhausted because the pro se petition to State's highest court argued that the State had failed to prove the elements of the alleged crime, even though the petition did not mention the leading Supreme Court cases on sufficiency of the evidence); Sanders v. Ryan, 342 F.3d 991, 999-1000 (9th Cir. 2003) (ineffective assistance of counsel claim exhausted where state pro se petition to State's highest court used the phrase “ineffective assistance of counsel” three times, even though he did not cite to the Sixth Amendment or Strickland v. Washington, 466 U.S. 668 (1984)). It is one thing for a court to understand a claim that “my attorney did a bad job” to be a Sixth Amendment ineffective assistance of counsel claim; it is quite another to understand that same claim to mean that counsel was ineffective in failing to interview Mr. X who would have provided an alibi for the defendant. The former is liberal construction; the latter is pure guesswork. Although a habeas petitioner need not “‘present to the state courts every piece of evidence supporting his federal claims, '” he does need to provide to the state's highest court “the operative facts, that is ‘all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'” Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citations omitted).

         To determine whether state court remedies have been exhausted, this court compares the Amended Petition with Petitions #1, #2, and #3 that Wilkins filed in the California Supreme Court to determine whether all the claims in the Amended Petition were included in Petitions #1, #2, or #3. They were not. The court will first list the claims in the Amended Petition, and then search for those claims in the state court petition.

         Wilkins's Amended Petition (Docket Nos. 43 & 45) asserts 23 claims:

• Claim 1: Wilkins's Fourteenth Amendment rights to due process and equal protection were violated because the trial court failed to hold a Barker hearing on his speedy trial right claim. Docket No. 45 at 9-15.[1]
• Claim 2: Wilkins's Sixth and Fourteenth Amendment rights to a speedy trial were violated because he was in pre-trial detention for five years and seven months before his trial. Id.
• Claim 3: Wilkins's Fourteenth Amendment rights to due process and equal protection were violated because he was denied a liberty interest granted under state law, to wit, California Penal Code § 1382, which provides for a state constitutional right to a speedy trial within 60 days. Id. at 37.
• Claim 4: Wilkins's Fourteenth Amendment rights to due process and equal protection were violated because he was denied a fair trial based on the trial court's refusal to grant a full and fair hearing on his motion to dismiss under California Penal Code § 825 for a delayed arraignment. Id. at 38-40.
• Claim 5: Wilkins's Fourteenth Amendment rights to due process and equal protection were violated because of pre-arraignment delay and delayed arraignment. Id.
• Claim 6: Wilkins's Fourteenth Amendment rights to due process and equal protection were violated because he was denied a liberty interest granted under California Penal Code §§ 1041-42 and Article I, § 16 ...

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