United States District Court, N.D. California
ORDER REMITTING PETITION TO STATE COURT AND STAYING
William Alsup, United States District Judge.
is a state prisoner serving a twenty-year sentence pursuant
to a plea deal. Simon pleaded nolo contendere to
attempted murder and second-degree robbery with use of a
deadly weapon. He seeks federal habeas corpus relief pursuant
to 28 U.S.C. § 2254.
previous order has stated the facts of this case (Dkt. No.
129). In brief, in November 2002, Ibis Brignardello and her
husband, Luis Perez Gardella, approached a church in
Berkeley. Petitioner Mar-Nique Simon allegedly approached the
couple with a gun and began hitting Gardella’s head
with the gun. Gardella fell to the ground and each time he
tried to get up, Simon allegedly hit him back down. The
police arrived and Simon fled. The cuts on Gardella’s
hands and face required sixty-five staples and twenty-three
December 2003, Simon entered into a plea agreement and
pleaded nolo contendere to attempted murder and
second-degree robbery with use of a deadly weapon. Simon
received two strikes for these offenses. In exchange, the
prosecution dropped the remaining charges. In March 2004, he
was sentenced to twenty years in prison with possibility of
parole at seventeen years.
September 2007, petitioner, proceeding pro se, filed
a petition for writ of habeas corpus in Alameda County
Superior Court with the following claims: (1) he was
incompetent to plead nolo contendere; and (2) his counsel was
ineffective for failing to adequately investigate his
competency, to hold a competency hearing, and to properly
explain the consequences of the plea. The petition was denied
as untimely without cause for delay, and alternatively, as
failing to state a prima facie case for relief. A few months
later, petitioner filed a petition for writ of habeas corpus
in the California Court of Appeal, which was denied. The
state appellate court found the petition untimely. Petitioner
then filed a petition in the California Supreme Court. The
petition was denied without comment, but with citations to
In re Robbins, 18 Cal.4th 770, 780 (1998), Ex
parte Swain, 34 Cal.2d 300, 304 (1949), and People
v. Duvall, 9 Cal.4th 464, 474 (1995) (Dkt. No. 5-1, Ex.
1–3; 4 at 1, Appellate Ct. Op. at 2, 4; 5).
December 2009, Simon filed a petition for writ of habeas
corpus in our district court asserting the following claims:
(1) he was incompetent to plead nolo contendere and his plea
was not knowingly and voluntarily made; (2) his attorney was
ineffective for failing to investigate his incompetence to
plead nolo contendere, to request a competency hearing, or to
fully explain the consequences of the plea deal; and (3) his
attorney was ineffective for failing to challenge the
court’s jurisdiction to try him as an adult. In March
2010, respondent filed a motion to dismiss the petition as
untimely under 28 U.S.C. § 2244(d)(1)(A). In response,
Simon submitted a mental health report suggesting that he was
mentally impaired. In March 2011, Judge Thelton Henderson
found the report too ambiguous to justify equitable tolling
and granted respondent’s motion to dismiss the petition
as untimely (Dkt. Nos. 1; 5; 6-1, Ex. B; 10). In July 2012,
however, our court of appeals granted a certificate of
appealability to determine whether the petition was properly
dismissed and reversed. See Simon v. Uribe, 528
Fed.Appx. 764 (9th Cir. 2013). In March 2017, Judge Henderson
held an evidentiary hearing in which expert testimony was
presented on the issue of Simon’s mental competence
(Dkt. No. 94). In August 2017, he found that Simon “was
entitled to equitable tolling due to severe mental
impairment” and denied respondent’s motion to
dismiss (Dkt. No. 105 at 1). After Judge Henderson retired,
the case came to Judge William Alsup.
2019 order found that petitioner’s procedural default
of claims one and two was excused under the cause and
prejudice standard. The order also ordered further briefing
on the issue of exhaustion of claims. This order will now
address whether the petitioner’s habeas claims have
Exhaustion of Claim Three.
contends his trial counsel was ineffective for failing to
investigate his age at the time of his crimes and for failing
to challenge the adult court’s jurisdiction over him.
Petitioner has never raised this particular IAC claim in his
state court habeas petitions.
an IAC claim based on particular grounds is not exhausted
where only an unrelated IAC claim on different grounds was
raised in state court. Moormann v. Schriro, 426 F.3d
1044, 1056 (9th Cir. 2005). The exhaustion requirement can,
however, be satisfied if the claim has been fairly presented
to the highest state court. Duncan v. Henry, 513
U.S. 364, 365 (1995). Here, the state petition claimed that
counsel was ineffective for failing to adequately investigate
his competency, to hold a competency hearing, and to properly
explain the consequences of the plea. Petitioner argues that
because he included facts about his age in his state habeas
petitions, challenged competency in his habeas petition to
the California Supreme Court, and because the word
“competency” also includes competency as an
adult, his claim regarding his age is was fairly presented at
the state court level and therefore exhausted.
pro se petitions should be liberally construed,
here, it would be unreasonable to find petitioner fairly
presented this IAC claim. A claim of failure to investigate
competency and failure to investigate age and jurisdiction
are different and alleging a connection between the two is
tenuous at best. Even though petitioner’s age was used
to support his competency claim and even though the term
competency may apply to competency as an adult, the state
petition solely refers to mental competency, and was thus
insufficient to give the state court notice of this claim.
Furthermore, although petitioner presented the language of
this IAC claim as part of an exhibit attached to his reply
brief, it was never mentioned in the briefs themselves.
Accordingly, this order finds petitioner’s ...