United States District Court, S.D. California
ORDER: (1) RULING ON EXHAUSTION STATUS OF DISPUTED
CLAIM; (2) GRANTING MOTION FOR STAY AND ABEYANCE [ECF NO.
42]; (3) STAYING CASE; AND (4) SETTING DEADLINES
HON.
CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE
On May
23, 2019, the parties filed a Joint Statement Regarding
Exhaustion, agreeing that twenty-two claims and/or sub-claims
in the federal Petition are exhausted, nine claims and/or
sub-claims are unexhausted, and disagreeing on the exhaustion
status of Claim XXV. (ECF No. 40.) In an Order dated June 3,
2019, the Court ruled on the exhaustion status of the
agreed-upon claims and took the parties' position
statements on the disputed claim under submission for
resolution along with the stay and abeyance matter. (ECF No.
41.) On June 13, 2019, Petitioner filed a Motion to Stay the
Federal Case Pending the Exhaustion of Remedies, accompanied
by a separate Memorandum of Points and Authorities in support
of the motion. (ECF Nos. 42, 42-1.) On July 10, 2019,
Respondent filed an Opposition to Petitioner's Motion
with an incorporated memorandum of points and authorities,
and on August 1, 2019, Petitioner filed a Reply with an
incorporated memorandum of points and authorities. (ECF Nos.
45, 48.) On November 6, 2019, the Court held oral argument on
the stay and abeyance motion.
For the
reasons discussed below, the Court FINDS
Claim XXV is unexhausted, GRANTS
Petitioner's Motion to Stay the Federal Case [ECF No.
42], STAYS this case pending the exhaustion
of state remedies, and SETS deadlines as
outlined below.
I.
PROCEDURAL HISTORY
In an
Information dated March 25, 1992, Petitioner was charged with
six counts of murder in the deaths of Tiffany Schultz, Janene
Weinhold, Holly Tarr, Elissa Keller, Amber Clark and Pamela
Clark, each in violation of Cal. Penal Code § 187(a),
one count of forcible rape in violation of Cal. Penal Code
§ 261(2), thirteen counts of residential burglary in
violation of Cal. Penal Code § 459, six counts of
attempted residential burglary in violation of Cal. Penal
Code § 664/459, two counts of indecent exposure in
violation of Cal. Penal Code §314.1, one count of
assault with a deadly weapon by means of force likely to
produce great bodily injury in violation of Cal. Penal Code
§ 245(a)(1), one count of battery in violation of Cal.
Penal Code § 242, one count of perjury under oath in
violation of Cal. Penal Code § 118, and one count of
possession of a weapon in jail in violation of Cal. Penal
Code § 4574(a). (CT 225-46.) The Information also
alleged that Petitioner used a deadly weapon, a knife, in the
commission of each of the six murders and the forcible rape
within the meaning of Cal. Penal Code §§ 12022(b)
and 12022.3(a), respectively. (Id.) Petitioner was
also charged with the special circumstances of multiple
murder and murder during the commission or attempted
commission of a rape pursuant to Cal. Penal Code §§
190.2(a)(3) and 190.2(a)(17). (CT 227, 231.) Prior to trial,
the trial court granted a motion to sever five of the counts,
including the two counts charging indecent exposure, one
count charging possession of a weapon in jail, one count of
assault and one count of battery, to be tried separately from
the other twenty-seven counts. (See RT 396-97; CT
1062-66.)
On July
13, 1993, after the guilt phase proceedings and
deliberations, the jury returned a verdict of guilty on each
of the twenty-seven counts tried, finding Petitioner guilty
of six counts of murder and one count of rape with the
special circumstances of multiple murder and rape-murder, and
finding he used a deadly weapon, a knife, in each of the
murders and the rape. (CT 3789-98.) The jury also found
Petitioner guilty of thirteen counts of burglary, six counts
of attempted burglary, and one count of perjury under oath.
(Id.) On August 17, 1993, after penalty phase
proceedings and deliberations, the jury returned a verdict of
death on each of the six counts of murder. (CT 3819-20.) On
the prosecution's motion and without defense objection,
the trial court dismissed the five severed counts. (CT 3821.)
On November 5, 1993, Petitioner was sentenced to death on
each of the six murder counts. (CT 3830.)
On
February 20, 2002, Petitioner filed the opening brief on
direct appeal. (Lodgment No. 207.) Respondent's brief was
filed on November 8, 2002, and Petitioner's reply brief
was filed on June 4, 2003. (Lodgment Nos. 208, 209.) On April
30, 2007, the California Supreme Court affirmed the
convictions and sentence on direct appeal. People v.
Prince, 40 Cal.4th 1179 (2007). The petition for a writ
of certiorari was denied by the United States Supreme Court
on January 7, 2008. Prince v. California, 552 U.S.
1106 (2008).
On
August 20, 2007, Petitioner filed a habeas petition with the
California Supreme Court. (Lodgment No. 216.) On July 27,
2011, Petitioner filed an amended petition accompanied by
four volumes of declarations and exhibits. (Lodgment Nos.
217-25.) An informal response was filed on October 15, 2012.
(Lodgment No. 226.) A reply was filed on September 23, 2013.
(Lodgment No. 227.) On April 11, 2018, the California Supreme
Court denied the state habeas petition. (Lodgment No. 228.)
On
April 11, 2019, Petitioner filed a federal Petition and
accompanying exhibits labeled Appendix Volumes I-X, deemed
filed nunc pro tunc to April 10, 2019. (See ECF Nos.
28, 33.) On May 23, 2019, the parties filed a Joint Statement
Regarding Exhaustion. (ECF No. 40.) On June 13, 2019,
Petitioner filed a Motion to Stay the Federal Case Pending
the Exhaustion of Remedies accompanied by a separate
Memorandum of Points and Authorities in support of the
motion. (ECF Nos. 42, 42-1.) On July 10, 2019, Respondent
filed an Opposition to Petitioner's Motion to Stay the
Federal Case Pending the Exhaustion of Remedies with an
incorporated memorandum of points and authorities. (ECF No.
45.) On August 1, 2019, Petitioner filed a Reply in Support
of Motion to Stay the Federal Case Pending the Exhaustion of
Remedies with an incorporated memorandum of points and
authorities. (ECF No. 48.) On October 11, 2019, Petitioner
filed a First Amended Petition and a supplemental volume of
exhibits labeled Appendix Volume XI. (ECF Nos. 50, 51.)
II.
DISCUSSION
A.
Exhaustion
“[A]
state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.” Picard v. Connor, 404 U.S.
270, 275 (1971); see also 28 U.S.C. §§
2254(b) and 2254(c). “[O]nce the federal claim has been
fairly presented to the state courts, the exhaustion
requirement is satisfied.” Picard, 404 U.S. at
275.
As set
forth above, the parties agree on the exhaustion status of
all claims in the federal Petition except for Claim
XXV;[1]
Respondent maintains that Claim XXV is exhausted and
Petitioner contends it is unexhausted. (ECF No. 40 at 2.) In
Claim XXV, Petitioner asserts that “[t]rial counsel
failed to conduct an adequate investigation and failed to
develop and present readily available mental health
mitigating evidence, ” including assertions that
“counsel failed to conduct a thorough investigation of
Mr. Prince's childhood, background and upbringing”
and that “counsel badly mishandled the investigation of
his resulting mental health impairments.” (ECF No. 50
at 279.)
Petitioner
contends that “[t]he focus of Claim XXV - counsel's
failure to present evidence of brain dysfunction through a
qualified neuropsychologist - is entirely new, ” and
that “[s]tate habeas counsel faulted trial
counsel's presentation of mitigating social history and
history of trauma, but not brain neuropsychological
impairments.” (ECF No. 40 at 9.) In Claim XXV,
Petitioner notes that trial counsel retained several experts
to evaluate and test Petitioner, including psychologists
Yedid and Lipson, that Yedid recommended further testing by a
neurologist, and that Lipson's findings were
“largely consistent” with Yedid's. (ECF No.
50 at 279-80.) Petitioner indicates that Dr. Asarnow also
performed testing, stated those tests showed no pathology in
Petitioner's brain, and recommended no further testing.
(Id. at 280.) Petitioner asserts that “[a]t
this point trial counsel had different results from different
experts” and acted unreasonably in failing to
investigate further given the conflicting results or present
any of the evidence to the jury, and faults counsel for only
presenting testimony by a sociologist, noting that the lack
of diagnosis and information about PTSD was ineffective.
(Id. at 280-82.) Petitioner also offers a report by
Dr. Martell concerning testing that reflects Petitioner's
impairments, states that trial counsel's experts
“arrived at fundamentally similar results, ” and
as such, asserts that the information was available at the
time of trial and trial counsel was ineffective for failing
to investigate and present the information to the jury.
(Id. at 282-86.)
Respondent
notes that in the state petition, Petitioner “claimed
trial counsel rendered constitutionally ineffective
assistance of counsel by failing to retain expert services to
aid in the investigation and presentation of mitigation
evidence, ” including failing to consult with and
present experts in trauma, psychological disabilities of
individuals who commit homicides and sexual crimes, failing
to present background evidence and expert testimony
concerning trauma and neglect, mental illnesses, attachment
disorder, and other behavioral issues, including the
implications of being born abnormally short. (ECF No. 40 at
4-5, citing Lodgment No. 291 at 1111-1262.) Respondent
maintains that “[t]he presentation of additional facts
in a federal petition does not evade the exhaustion
requirement when the petitioner has presented the substance
of his claim to a state court and the supplemental evidence
does not fundamentally alter the legal claim considered by
the state court.” (Id. at 5, citing
Vasquez v. Hillery, 474 U.S. 254, 257-58 (1986).)
Respondent contends that “[w]hile Dr. Martell's
report may present additional evidence to support the claim,
the basis of Petitioner's legal claim remains
constant.” (Id. at 5-6.)
In
Hillery, the Supreme Court held that: “We have
never held that presentation of additional facts to the
district court, pursuant to that court's directions,
evades the exhaustion requirement when the prisoner has
presented the substance of his claim to the state
courts.” 474 U.S. at 257-58. In this case, the
additional facts presented in the federal petition were not
pursuant to this Court's directions, but instead were the
result of Petitioner's own actions. See,
e.g., Aiken v. Spaulding, 841 F.2d 881, 884
n.3 (9th Cir. 1988) (distinguishing Hillery and
finding claim unexhausted, reasoning that: “Here, by
contrast, the new evidence was presented by the habeas
petitioner on his own initiative, and the evidence places his
claim in a significantly different and stronger evidentiary
posture than it had when presented in state court.”)
The Court is not persuaded that Hillery governs in
this instance. Instead, Petitioner's citation to and
reliance on the Ninth Circuit's decision in Dickens
v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), is
persuasive. (See ECF No. 40 at 8-10.) The
Dickens Court, acknowledging both Hillery
and prior Ninth Circuit case law, stated that: “A claim
has not been fairly presented in state court if new factual
allegations either ‘fundamentally alter the legal claim
already considered by the state courts,' or ‘place
the claim in a significantly different and stronger
evidentiary posture than it was when the state courts
considered it.'” Dickens, 740 F.3d at
1318, quoting and citing Hillery, 474 U.S. at 260,
Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir.
2002), Aiken, 841 F.2d at 883, and Nevius v.
Summer, 852 F.2d 463, 470 (9th Cir. 1988).
Petitioner
contends that the federal claim is “fundamentally
different” than the claim that was previously presented
to the state supreme court, in that: “In Claim XXV, Mr.
Prince alleged that trial counsel was ineffective for failing
to present the testimony of a qualified neuropsychologist who
could have testified to Mr. Prince's memory, language,
and frontal lobe dysfunction; the likely existence of a
‘localized lesion involving the left inferior
prefrontal cortex;' and a diagnosis of ‘a
neurodevelopmental language disorder that is also associated
with memory impairment.'” (ECF No. 40 at 6, quoting
ECF No. 28 at 278; see also ECF No. 50 at 283.)
Petitioner asserts that “[i]n contrast to the new
evidence offered by Mr. Prince, state habeas counsel did not
allege trial counsel's ineffectiveness for failing to
present evidence of frontal lobe damage, neuropsychological
deficits, and exposure to neurotoxins.” (Id.
at 7.) He argues that “[n]one of the allegations of
trial counsel ineffectiveness raised by state habeas counsel
relate to the failure to present evidence of brain damage
by a neuropsychologist, ” and that the prior claim
“did not allege a lesion to the left pre-frontal
cortex, did not allege executive dysfunction, did not allege
frontal lobe damage, and did not address neuropsychological
testing, ” as well as “did not even mention - let
alone address - trial counsel's failures to utilize the
results obtained pretrial by Drs. Yedid, Lipson, and
Asarnow.” (Id. at 7-8 (emphasis in original).)
Upon
review, Petitioner's state habeas claim did not mention
that trial counsel had retained or consulted with mental
health experts, much less that some testing indicated
Petitioner suffered from impairments. Instead, the state
claim asserted that “in addition to investigating,
preparing and presenting evidence of Prince Jr.'s family
and social history of trauma and physical abuse, chronic
neglect, poverty, and symptoms of mental illness, trial
counsel was obligated to provide this information to the
appropriate mental health experts so that they could properly
evaluate Prince Jr. and then testify regarding the impact
these incidences and mental illnesses had upon him.”
(Lodgment No. 219 at 1115.) Meanwhile, Petitioner now argues
that “[t]rial counsel did not utilize their experts to
explain Mr. Prince's impairments to the jury, ” and
that “[c]ounsel's failure to properly present
mitigating mental health expert testimony was compounded by
counsel's decision to present a sociologist whose
testimony left the jury with the impression that Mr. Prince
simply had no deficits.” (ECF No. 50 at 280, 286.) As
Petitioner correctly observes: “State habeas counsel
did not even mention - let alone address - trial
counsel's failures to utilize the results obtained
pretrial by Drs. Yedid, Lipson and Asarnow.” (ECF No.
40 at 8.) Petitioner's new allegations, that counsel
failed to properly use ...