United States District Court, S.D. California
ANTHONY L. CONTRERAS, Petitioner,
WARREN L. MONTGOMERY, Warden, Respondent.
REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION
TO DISMISS THE PETITION [DOC. NO. 18]
Karen S. Crawford United States Magistrate Judge
is a state prisoner proceeding pro se and in
forma pauperis with a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 challenging his
conviction in San Diego Superior Court No. SCD238193. [Doc.
No. 1; Doc. No. 19-1, at p. 1.] When the Petition was filed
on November 14, 2016, it was subject to dismissal under
Rose v. Lundy, 455 U.S. 509, 522 (1982), because it
included both exhausted and unexhausted claims. [Doc. Nos. 1,
2, 5, 9.] Petitioner requested and was granted an unopposed
Motion for Stay and Abeyance under Rhines v. Weber,
544 U.S. 269 (2005). [Doc. Nos. 5, 9, 10.] The case was then
stayed from August 23, 2017 until July 23, 2019, so that
petitioner could exhaust his state court remedies. [Doc. Nos.
7, 10, 17.] On July 23, 2019, petitioner informed the Court
in a Status Report that he had exhausted his state court
remedies [Doc. No. 16], so the Court filed an Order Requiring
Response to Petition. [Doc. No. 17.]
the Court is respondent's Motion to Dismiss the Petition
for failure to exhaust state court remedies [Doc. No. 18] and
petitioner's Opposition thereto [Doc. No. 22]. In his
Opposition, petitioner requests a second stay under
Rhines v. Weber, 544 U.S. at 269, so that he can
exhaust his unexhausted claims.
reasons outlined more fully below, IT IS RECOMMENDED that the
District Court DENY respondent's Motion to Dismiss
without prejudice and GRANT petitioner a limited, conditional
stay under Rhines v. Weber, 544 U.S. at 269, so he
can pursue exhaustion of his unexhausted claims.
Alternatively, the District Court should give petitioner the
option of abandoning his unexhausted claims and filing an
Amended Federal Petition that only includes his currently
Motion to Dismiss, respondent argues that the Court should
dismiss the Petition without prejudice unless petitioner
elects to delete his unexhausted claims and sub-claims and
proceed only on his exhausted claims. [Doc. No. 18-1, at pp.
1, 5, 7.] Respondent opposes any request by petitioner for
another stay. [Doc. No. 18-1, at p. 5.] If petitioner does
opt to dismiss his Amended Petition rather than abandon and
delete his unexhausted claims, respondent believes any
subsequent petition could be time barred. [Doc. No. 18-1, at
Opposition, petitioner claims he was unaware that all his
claims were not exhausted until he received respondent's
Motion to Dismiss. He also represents he was being assisted
by an attorney, who was appointed to represent him in
connection with his state habeas proceedings, and this
attorney was unable to explain why all his claims were not
exhausted. [Doc. No. 22, at pp. 2-3.] He therefore requests
another stay of the proceedings under Rhines, 544
U.S. at 269, so he can continue to exhaust his state court
remedies as to all his unexhausted claims. [Doc. No. 22, at
The Exhaustion Requirement.
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A).
“[E]xhaustion of state remedies requires that
petitioners ‘fairly present' federal claims to the
state courts in order to give the State the
‘opportunity to pass upon and correct' alleged
violations of its prisoners' federal rights. [Citations
omitted.]” Duncan v. Henry, 513 U.S. 364, 365
(1995). Federal Courts may not “consider any
federal-law challenge to a state-court decision unless the
federal claim ‘was either addressed by or properly
presented to the state court that rendered the decision. . .
.'” Howell v. Mississippi, 543 U.S. 440,
443 (1997) (internal citations omitted). The exhaustion
requirement is satisfied if the legal theory raised in the
Federal Petition is the “substantial equivalent”
of that presented in the state court system. Picard v.
Connor, 404 U.S. 270, 278 (1971).
Underlying Conviction in San Diego Superior Court No.
was convicted by a jury of attempted, premeditated murder and
shooting at an occupied vehicle for the benefit of, at the
direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist in
criminal gang conduct. [Doc. No. 19-1, at p. 2.] The trial
court sentenced petitioner to life in state prison for the
attempted murder, plus 25 years to life because of a gun
enhancement. As to another charge of felon in possession of a
firearm, the jury was unable to reach a verdict. [Doc. No.
19-1, at p. 2.]
jury found it was “not true” that petitioner
personally discharged a firearm during the commission of the
offense. [Doc. No. 19-1, at p. 2.] This finding indicates the
jury concluded petitioner was involved in the shooting as the
driver of the vehicle and the unidentified shooter was the
passenger in the vehicle. By contrast, the prosecution's
theory of the case was that petitioner was the passenger in
the car, and he was the person who shot the victim. [Doc. No.
19-1, at pp. 2-9; 12-16.] Based on evidence presented at
trial (e.g., there was evidence petitioner told the
police he was the driver, not the passenger on the night in
question), the trial court believed it was appropriate to
instruct the jury on an additional theory of liability -
aiding and abetting the shooter. [Doc. No. 19-1, at p. 10.]
California Court of Appeal.
direct appeal to the California Court of Appeal, petitioner
raised the following issues:
(1) The trial court violated petitioner's right to due
process, because the jury was instructed with CALCRIM No. 401
(aiding and abetting) and was then given a modified version
of CALCRIM No. 1403 (limited purpose of evidence of gang
activity). [Doc. No. 19-1, at pp. 10-15.] According to
petitioner, the modified version of CALCRIM No. 1403 allowed
the jury to consider character evidence (i.e.,
petitioner's membership in a gang) to determine whether
he aided and abetted the shooter, and this lowered the
prosecution's burden of proof. [Doc. No. 19-1, at pp. 3,
(2) The trial court violated petitioner's right to due
process, because the jury was unexpectedly instructed on the
natural and probable consequences theory of aider and abettor
liability in response to questions by the jury. Defense
counsel objected to this instruction, stating
“different strategies might have been used” if it
was known this instruction would be given. On appeal,
petitioner argued the trial was unfair, because he did not
have adequate notice he could be convicted under this theory.
[Doc. No. 19-1, at pp. 3, 16-26.]
(3) Petitioner's constitutional right to due process was
violated, because the cumulative effect of these
instructional errors rendered the trial so unfair that the
judgment against him should be reversed. [Doc. No. 19-1, at
pp. 3, 26.]
unpublished opinion filed on May 13, 2015 in No. D064999, the
California Court of Appeal rejected all of petitioner's
arguments and affirmed the judgment. [Doc. No. 19-1, at p.
California Supreme Court.
16, 2015, a Petition for Review was filed in the California
Supreme Court. [Doc. No. 19-2, at p. 69.] This Petition for
Review raised the same issues that were previously presented
to and rejected by the California Court of Appeal. [Doc. No.
19-2, at pp. 2-3; 11-40.] The California Supreme Court
summarily denied the Petition for Review on August 12, 2015.
[Doc. No. 19-3, at p. 1.] Accordingly, petitioner has
exhausted his state court remedies as to all the issues he
raised in his direct appeals.
State Habeas Petitions.
San Diego Superior Court.
filed his first state habeas petition in the San Diego
Superior Court. A copy of this petition is attached as
Exhibit C to the Federal Petition and the file stamp
indicates the petition was filed in San Diego Superior Court
on November 14, 2016. An attached proof of service indicates
the petition was served by mail on November 8, 2016. [Doc.
No. 1, at pp. 104-128; Doc. No. 19-1, at p. 2.] In addition,
an attached Declaration explains that the petition was typed
by a law library clerk who was helping petitioner. This
Declaration also states that the law library clerk typed the
Federal Petition, which was protectively filed around the
same time on November 14, 2016. [Doc. No. 1, at pp. 1, 141.]
The habeas petition filed in the San Diego Superior Court
includes the following claims:
Petitioner is entitled to habeas relief, because he is
“actually innocent” based on “new
evidence.” [Doc. No. 1, at p. 108 (Exh. C to
Pet'n).] This claim is based on a witness declaration
obtained after petitioner was convicted. [Doc. No. 1, at pp.
111-113 (Exh. C. to Pet'n).]
Petitioner's right to due process was violated, because
the trial court instructed the jury with aiding and abetting
instructions (CALCRIM Nos. 400 and 401) and the corpus
delicti instruction (CALCRIM No. 359). Petitioner claims
the aiding and abetting instructions were prejudicial,
because there was insufficient evidence in the record to
support this theory of liability. In addition, petitioner
contends the jury was confused by the aiding and abetting
instructions based on the two notes they sent out during
deliberations seeking clarification. Petitioner therefore
believes he was found guilty based on an “inadequate
theory of liability.” [Doc. No. 1, at pp. 114-115 (Exh.
C to Pet'n).] With respect to the corpus delicti
instruction (CALCRIM No. 359), petitioner claims there is a
portion of this instruction that is ambiguous, and, as a
result, the jury could have found him guilty based on his
extrajudicial statements alone. [Doc. No. 1, at pp. 116-117.]
Petitioner's right to due process was violated when the
trial court admitted evidence of his affiliation with a gang
through testimony by a booking officer who questioned
petitioner while he was being booked on prior, unrelated
charges. Petitioner told the booking officer he was a member
of the Encanto Street Gang. [Doc. No. 1, at p. 118.]
According to petitioner, his prior statement about his gang
affiliation should not have been admitted, because it was
made without the warning required under Miranda v.
Arizona, 384 U.S. 436 (1966). Petitioner believes the
admission of this evidence was prejudicial, because the jury
was instructed with CALCRIM No. 1403 indicating the jury
could use gang evidence to determine whether petitioner aided
and abetted the perpetrator in the crimes of attempted
murder, shooting at an occupied motor vehicle, and assault
with a firearm. [Doc. No. 1, at p. 118, (Exh. C to
Pet'n.] As part of this claim, petitioner also alleges
that his right to confront witnesses was violated, because a
gang expert testified that petitioner is an admitted gang
member based on hearsay statements made by other officers in
violation of Crawford v. Washington, 541 U.S. 36
Petitioner alleges he was denied his right to effective
assistance of counsel, because his trial attorney failed to
properly investigate and locate witnesses to the shooting.
[Doc. No. 1, at p. 121 (Exh. C to Pet'n).]
Petitioner alleges his constitutional right to due process
was violated, because the cumulative effect of the errors
alleged in Grounds 2 through 4 above rendered the trial so
unfair that the judgment against him should be reversed.
[Doc. No. 1, at p. 122 (Exh. C to Pet'n).]
Petitioner alleges he was denied his right to effective
assistance of appellate counsel, because his appellate
attorney failed to adequately raise Grounds 2 through 5. The
trial court's decision addresses all claims raised in
this initial petition. [Doc. No. 1, at p. 123 (Exh. C to
December 12, 2016, the San Diego Superior Court issued an
Order Denying the Petition for Writ of Habeas Corpus (No.
HC22702, reviewing SCD238193). The Order addresses but