United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with an application for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The action proceeds on the first amended petition filed on
January 2, 2019,  which challenges petitioner's 2013
conviction for torture and first-degree murder, with special
circumstances of kidnapping with intent to kill and
intentional murder involving the infliction of torture. ECF
No. 25-1 at 1; ECF No. 27-1 at 9.
Factual and Procedural Background
appealed her conviction to the California Court of Appeal,
First Appellate District raising five grounds for relief. ECF
No. 25-1 at 16-122. The Court of Appeal modified the judgment
to add one additional day of custody credit-thereby granting
the relief requested in the fifth claim-and otherwise
affirmed the judgment as modified on January 26, 2016. ECF
No. 27-1 at 2-25. Petitioner then proceeded to file a
petition for review in the California Supreme Court, which
contained only two of the five original claims. ECF No. 27-1
at 27-51. Review was subsequently denied on April 20, 2016.
ECF No. 27-1 at 81. Petitioner did not petition the United
States Supreme Court for certiorari. ECF No. 25-1 at 3.
State Habeas Petition
her direct appeal was pending, petitioner filed two pro se
petitions for writ of habeas corpus in the Solano County
Superior Court. ECF No. 25 at 18. One petition was denied on
August 25, 2014, while the other was denied on November 19,
next pro se state habeas petition was filed with the Solano
County Superior Court on December 15, 2017. ECF No. 27-1 at
83. The petition was denied on February 7, 2018. Id.
proceeded to file a pro se petition for writ of habeas corpus
in the Court of Appeal, First Appellate District
(id. at 90-258), which was denied on May 10, 2018
(id. at 260).
then filed a pro se petition for writ of habeas corpus in the
California Supreme Court, which was denied without comment on
November 2, 2018. ECF No. 25 at 2.
Federal Habeas Petition
January 26, 2017, Petitioner filed her original habeas
application in this court raising four grounds for relief.
ECF No. 1. Before any briefing on the claims took place,
Petitioner moved for and was granted a stay under Kelly
v. Small, 315 F.3d 1063 (9th Cir. 2003), in order to
exhaust additional claims. ECF Nos. 13, 15. After the stay
was lifted, Petitioner filed an amended petition on January
2, 2019. ECF No. 25. As originally filed, the amended
petition merely supplemented the original petition, rather
than standing on its own. However, due to the length of both
petitions, the court did not require Petitioner to file a
single amended petition that contained all of her claims.
Instead, the Clerk of the Court was directed to attach the
original petition to the first amended petition. ECF No. 26.
As a result, the amended petition contained seven claims for
relief-the four claims contained in the original petition,
plus three additional claims. ECF No. 25. Thus, Claims One
through Four of the original petition make up Claims One
through Four of the first amended petition (ECF No. 25-1),
while the new claims added by the supplemental petition will
hereafter be referred to as Claims Five, Six, and Seven (ECF
being ordered to respond to the amended petition as construed
by the court (ECF No. 26), respondent filed a motion to
dismiss arguing that Claims Two and Four are unexhausted,
while Claims Five through Seven are procedurally defaulted
because they were denied as untimely in state court. ECF No.
27. Petitioner opposes the motion. ECF No. 29. In his reply,
respondent concedes that Claims Five through Seven were not
denied as untimely in state court and offers alternate
grounds for dismissing the claims. ECF No. 30. Petitioner filed
a sur-reply addressing the new arguments. ECF No. 31.
Motion to Dismiss
has moved to dismiss Claims Two and Four as unexhausted,
Claims Five and Six as procedurally barred as successive, and
Claim Seven as untimely. ECF Nos. 27, 30.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus unless
“there is an absence of available State corrective
process” or circumstances make the process ineffective
to protect a petitioner's rights. 28 U.S.C. §
2254(b)(1). If exhaustion is to be waived, it must be waived
explicitly by respondent's counsel. 28 U.S.C. §
2254(b)(3). A waiver of exhaustion, thus, may not be
implied or inferred. This requirement “gives states
‘the first opportunity to address and correct alleged
violations of state prisoner's federal
rights.'” Wooten v. Kirkland, 540 F.3d
1019, 1023 (9th Cir. 2008) (quoting Coleman v.
Thompson, 501 U.S. 722, 731 (1991)). In order
“[t]o exhaust a constitutional claim, the claim must be
‘fairly present[ed]' in state court to provide the
state courts an opportunity to act on them.”
Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014)
(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)
(per curiam) (second alteration in original). Exhaustion also
requires that federal claims are presented to “each
appropriate state court, ” Wooten, 540 F.3d at
1025 (citing Baldwin v. Reese, 541 U.S. 27, 29
(2004), including discretionary review by the state's
highest court, O'Sullivan v. Boerckel, 526 U.S.
838, 845, 848 (1999).
asserts that Claims Two and Four have not been exhausted
because they have never been presented to the California
Supreme Court. ECF No. 27 at 2-4; ECF No. 30 at 2-3.
Petitioner argues that Claims Two and Four are exhausted
because they were advanced by her appellate attorney and it
is not her fault if he did not present them to the state
supreme court. ECF No. 29 at 1-2; ECF No. 31 at 1-2. She
argues that she should not be prejudiced by counsel's
failure, and that her petition should be construed liberally
because she is a pro se prisoner. ECF No. 29 at 2; ECF No. 31
at 2. Petitioner further contends that, if the court finds
that the claims are unexhausted, there was both “good
cause and actual prejudice” due to ineffective
assistance of appellate counsel that should excuse the
default. ECF No. 29 at 2; ECF No. 31 at 2-3. She also argues
that because there was no intervening United States Supreme
Court decision specifically addressing her claims after the
denial of her petition by the court of appeal, bringing the
claims to the California Supreme Court would have been futile
because they would have simply been denied. Id. at
petitioner appealed her conviction to the First District
Court of Appeal, her appeal contained five claims for relief.
ECF No. 25-1 at 16-122. These same grounds for relief make up
Claims One through Four of the federal habeas petition
because petitioner simply attached her direct appeal to her
federal application. Id. Claim One argues that there
was insufficient evidence of intent to kill or specific
intent to inflict extreme and prolonged pain to support the
torture conviction and the finding of the torture special
circumstance. Id. at 40-57, 77-85, 106-13, 119-21.
Claims Two and Three both allege instructional error on the
part of the trial court: Claim Two argues instructional error
in regard to the kidnapping special circumstance, while Claim
Three argues instructional error in regard to the torture
special circumstance. Id. at 57-67, 85-97, 113-18.
Finally, Claim Four argues that if any instructional error
was deemed forfeited, that it was due to trial counsel's
ineffective assistance. Id. at 67-72.
petition for review to the California Supreme Court sought
review of only Claims One and Three from the
appeal. ECF No. 27-1 at 32-51. The petition for
review therefore exhausted only Claims One and Three of the
federal petition. It further appears that petitioner's
state habeas petition contained only Claims Five, Six, and
Seven of her first amended petition.Because Claims Two and Four
were presented to the state ...