Loyd v. Spearmen

          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. ...