Prince v. Davis

          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 ...