Contreras v. Montgomery

          REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION TO DISMISS THE PETITION [DOC. NO. 18]

          Hon. Karen S. Crawford United States Magistrate Judge

         Petitioner 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.]

         Before 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.

         For the 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 exhausted claims.

         Discussion

         In the 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 p. 6.]

         In his 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 p. 3.]

         I. The Exhaustion Requirement.

         “An 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).

         II. Underlying Conviction in San Diego Superior Court No. SCD238193.

         Petitioner 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.]

         The 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.]

         III. Direct Appeals.

         A. California Court of Appeal.

         In a 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, 9-16.]

(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.]

         In an 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. 26.]

         B. California Supreme Court.

         On June 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.

         IV. State Habeas Petitions.

         A. San Diego Superior Court.

         Petitioner 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:

         (1) 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).]

         (2) 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.]

         (3) 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 (2004).

         (4) 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).]

         (5) 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).]

         (6) 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 Pet'n).]

         On 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 rejects ...