United States District Court, N.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR
FAILURE TO EXHAUST STATE REMEDIES; REQUIRING PETITIONER TO
MAKE ELECTION RE: DKT. NO. 12
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
Petitioner
Daniel Ray Loyd, an inmate at High Desert State Prison, in
Susanville, California, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging a
conviction from Lake County Superior Court. Pending before
the Court is respondent's motion to dismiss the petition
for failure to exhaust state remedies. Dkt. No. 12.
Petitioner has filed an opposition, Dkt. No. 16, and
respondent has filed a reply, Dkt. No. 17. For the reasons
set forth below, the Court GRANTS respondent's motion to
dismiss.
BACKGROUND
A Lake
County Superior Court jury found petitioner guilty of first
degree murder (Cal. Penal Code § 187(a)); assault with a
firearm (Cal. Penal Code § 245(a)(2)); possession of a
firearm by a felon (Cal. Penal Code § 12021(a)(1));
possession of ammunition by a felon (Cal. Penal Code §
12316(b)(1)); and found true a special circumstance
allegation that the murder was committed during an attempted
robbery (Cal. Penal Code § 190.2(a)(17)) and multiple
gun use allegations. The court found true prior conviction
and prior prison term allegations, and sentenced petitioner
to a term of life in prison without the possibility of parole
and an additional term of 26 years, 4 months. Dkt. No. 12-1
at 37.
On
December 5, 2017, the California Court of Appeal affirmed the
convictions and sentence. Dkt. No. 12-1 at 26-62.
On
January 12, 2018, petitioner submitted a petition for review
to the California Supreme Court, challenging his convictions
and sentence on the following grounds: (1) the trial
court's erroneous instructions on felony murder causation
and the trial court's failure to instruct on provocative
conduct murder deprived him of due process, a fair trial and
a jury verdict under the Sixth and Fourteenth Amendments, (2)
the trial court's failure to instruct on lesser-included
offenses to first-degree felony murder based on the
conflicting evidence as to whether a robbery occurred
deprived him of a fair trial; (3) the trial court's
refusal to permit the jury to have defense counsel's
argument regarding proximate cause reread after the jury
instructions had been given deprived petitioner of due
process and his Sixth Amendment right to effective assistance
of counsel; and (4) the trial court's erroneous admission
of his custodial statement notwithstanding his invocation of
his right to counsel deprived him of his Fifth and Fourteenth
Amendment rights to freedom from self-incrimination. Dkt. No.
12-1 at 3-67. On March 14, 2018, the California Supreme Court
denied the petition for review. Dkt. No. 12-1 at 69.
On May
4, 2018, petitioner filed a habeas petition, Case No.
A154216, in the California Court of Appeal, First Appellate
District, which was denied on May 16, 2018, without prejudice
to the petition first being filed in superior
court.[1] Dkt. No. 12-1 at 73.
On July
9, 2018, petitioner filed another habeas petition, Case No.
A154744, in the California Court of Appeal, First Appellate
District, which was denied on July 12, 2018.[2] Dkt. No. 12-1 at
75.
On
September 24, 2018, [3] Petitioner filed a petition for review
with the California Supreme Court seeking review of the
California Court of Appeal's July 12, 2018 denial of his
state habeas petition. The petition for review challenged his
conviction on the following grounds: (1) deprivation of due
process and Sixth Amendment right to counsel when trial
counsel admitted that petitioner was guilty of all charges;
(2) ineffective assistance of counsel where counsel
acknowledged petitioner's guilt during closing argument,
failed to investigate a potentially meritorious defense, and
failed to cross-examine witnesses effectively; (3)
ineffective assistance of counsel where counsel admitted in
closing argument that petitioner was guilty of robbery
leaving the jury with no choice but to find petitioner guilty
of felony murder; (4) ineffective assistance of counsel where
counsel performed an inadequate investigation by failing to
obtain an expert witness that could testify that
petitioner's pistol could not have shot Ms. Quiett if she
were standing and by failing to obtain the 911 call log and
the CAD log; (5) ineffective assistance of counsel where
counsel had inadequate knowledge of the law in that counsel
failed to understand the principle of felony murder; (6)
ineffective assistance of counsel where trial counsel
effectively failed to assert a legal defense when counsel
asserted a defense of foreseeability in felony murder case
while also admitting that petitioner committed the robbery
and caused the death of the victim; (7) ineffective
assistance of counsel where counsel admitted petitioner was
guilty of all crimes without a tactical reason; (8)
ineffective assistance of counsel where counsel refused to
assert second shooter defense; (9) ineffective assistance of
counsel where counsel called petitioner to testify regarding
a defense that trial counsel chose to abandon; and (10)
cumulative error. Dkt. No. 12-1 at 77-98.
On
September 26, 2018, the Clerk of the California Supreme Court
returned the petition for review to petitioner unfiled with
the following cover letter: “We hereby return unfiled
your petition for review, which we received on September 26,
2018. A check of the Court of Appeal docket shows that an
order denying petition for writ of habeas corpus [was] filed
on July 12, 2018. This court lost jurisdiction to act on any
petition for review after August 13, 2018. (See Cal Rules of
Court, rule 8.500(e).) Without this jurisdiction, this court
is unable to consider your request for legal relief.”
Dkt. No. 12-1 at 101.
On
November 8, 2018, [4] petitioner filed the instant petition in
the Eastern District of California. Dkt. No. 1. On November
29, 2018, this case was transferred from the Eastern District
of California to this district. Dkt. No. 3. On January 31,
2019, this Court found that the petition stated the following
cognizable claims for federal habeas relief: (1) the trial
court erred by failing to correctly instruct the jury on the
causation required for felony-murder and for failing to
instruct the jury that if the felony-murder rule did not
apply, the murder charge was governed by the provocative act
murder rule; (2) the trial court erred by failing to instruct
the jury on lesser included offenses; (3) the trial court
erred in failing to read to the jury defense counsel's
closing argument regarding proximate cause as requested by
the jury; (4) the trial court erred by admitting
petitioner's custodial statement made after he invoked
his right to counsel; (5) trial counsel rendered ineffective
assistance on multiple grounds; and (6) trial counsel's
errors resulted in cumulative error. Dkt. No. 10.
DISCUSSION
Respondent
has filed a motion to dismiss this petition as unexhausted,
arguing that the ineffective assistance of counsel claims and
the cumulative error claim are not exhausted. Dkt. No. 12.
Petitioner argues that the Court should not dismiss this
petition as unexhausted because he has made a “valiant
attempt to follow court procedures and exhaust all claims in
accordance to rules of court, ” and because the cover
page of the habeas petition filed in the California Court of
Appeals was incorrectly labelled. Dkt. No. 16 at 3-4. In the
alternative, petitioner requests that he be granted leave
under Rhines v. Weber, 544 U.S. 269, 277-78 (2005)
to “have all claims addressed in a[n] original habeas
proceeding with properly titled cover page, as petitioner now
understands that there is a difference from a petition for
review, and a petition for writ of habeas corpus, with
different filing timelines.” Dkt. No. 16 at 4. The
parties agree that Claim Nos. 1 through 4 were exhausted by
the January 12, 2018 petition for review of the direct
appeal.
A.
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