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Odom v. Adams

United States District Court, E.D. California

November 4, 2019

RYAN BIGOSKI ODOM, Petitioner,
v.
D.G. ADAMS, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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, [1] 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.

         I. Factual and Procedural Background

         A. Direct Review

         Petitioner 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.

         B. State Habeas Petition

         While 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, 2014. Id.

         Petitioner's next pro se state habeas petition was filed with the Solano County Superior Court on December 15, 2017.[2] ECF No. 27-1 at 83. The petition was denied on February 7, 2018. Id. at 83-88.

         Petitioner 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).

         Petitioner 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.

         C. Federal Habeas Petition

         On 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 No. 25).

         After 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.[3] ECF No. 30. Petitioner filed a sur-reply addressing the new arguments. ECF No. 31.

         II. Motion to Dismiss

         Respondent 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.

         A. Exhaustion

         The 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).[4] 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).

         Respondent 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 3.

         When 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.[5] 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.

         The petition for review to the California Supreme Court sought review of only Claims One and Three from the appeal.[6] 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.[7]Because Claims Two and Four were presented to the state ...


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