United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS AS UNEXHAUSTED; REQUIRING PETITIONER TO MAKE
ELECTION RE: DKT. NO. 13
Petitioner
Alpacino McDaniels, an inmate at California Men's Colony
in San Luis Obispo, California, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a conviction from Alameda County Superior Court.
Pending before the Court is respondent's motion to
dismiss the petition for a writ of habeas corpus as
unexhausted. Dkt. No. 13. Petitioner has not filed an
opposition, and the deadline to do has since passed. However,
on September 29, 2019, petitioner mailed to the Court the
California Supreme Court's September 11, 2019 summary
denial of his habeas petition. Dkt. No. 16. For the reasons
set forth below, the Court GRANTS IN PART AND DENIES IN PART
respondent's motion to dismiss and requires petitioner to
make an election.
BACKGROUND
Petitioner
was found guilty by an Alameda County Superior Court jury of
first degree murder and possession of a firearm by a felon.
The jury also found true three firearm enhancements
accompanying the murder count, including that petitioner
personally and intentionally discharged a firearm causing
death. The trial court sentenced petitioner to a total term
of 50 years to life in prison, composed of a term of 25 years
to life for the murder, a consecutive term of 25 years to
life for the discharge of a firearm causing death, and a
concurrent term of two years for the firearms possession
offense. A twenty year term and a ten year term for the other
two firearm enhancements were stayed. Dkt. No. 13-1 at 33-34.
Petitioner
appealed the conviction, and on April 17, 2018, the
California Court of Appeal remanded the case to consider
whether to strike the firearm enhancements and to correct
errors in the calculation of custody credits and the abstract
of judgment, but otherwise affirmed the judgment. Dkt. No.
13-1 at 33-60. On June 20, 2018, the California Supreme Court
denied the petition for review. Dkt. No. 13-1 at 62.
On
September 20, 2018, petitioner filed a petition for a writ of
habeas corpus in Alameda County Superior Court, Dkt. No. 13-1
at 64-452, which was denied on October 29, 2018, Dkt. No.
13-2 at 3-27. On March 4, 2019, petitioner filed a petition
for a writ of habeas corpus in the California Court of
Appeal. Dkt. No. 13-2 at 29-410.
On
March 18, 2019, petitioner filed a petition for a writ of
habeas corpus in this Court, which commenced the instant
action. Dkt. No. 1. In his petition, petitioner acknowledged
that not all his claims were exhausted and stated his
intention to file a motion for a stay and abeyance.
Id. at 12.
On
April 18, 2019, the Court found that the instant petition
stated the following cognizable claims for federal habeas
relief: (1) appellate counsel was ineffective; (2) the trial
court erred by admitting tainted evidence; (3) the
prosecution either failed to preserve, or failed to turn
over, exculpatory evidence; (4) the trial court erred in
allowing the video reenactment; (5) the prosecutor committed
misconduct when he allowed false testimony at trial; (6) the
trial court committed instructional error by failing to give
the requested pinpoint instruction; (7) the prosecutor
committed misconduct when he commented on petitioner's
failure to testify; and (8) the prosecutor's closing
argument constituted misconduct. Dkt. No. 11 at 2. The Court
ordered respondent to show cause why the petition should not
be granted. Id. The Court noted that petitioner had
acknowledged that he had not exhausted all claims, but
declined to sua sponte address the issue of
exhaustion of state remedies because the Court could not
determine from the record which claims had been exhausted.
Id.
On May
9, 2019, the California Court of Appeal denied the petition
for a writ of habeas corpus. Dkt. No. 13-2 at 412-13.
On June
10, 2019, petitioner submitted a petition for a writ of
habeas corpus to the California Supreme Court, challenging
his convictions and sentence on the following grounds: (1)
appellate counsel was ineffective for failing to raise the
claims raised in the petition; (2) the trial court erred in
denying petitioner's motion to exclude identification
testimony; (3) the trial court erred in admitting video
reenactment of the route the shooter walked because the video
reenactment was irrelevant, misleading and confused the
issue; (4) the prosecutor committed misconduct when he
knowingly used false testimony; (5) the trial court erred
when it denied petitioner's request for a pinpoint jury
instruction about suggestive identification procedures; (5)
the prosecutor committed misconduct by commenting on
petitioner's silence during the prosecution's
rebuttal to the defense's closing argument; and (6) the
prosecutor's rebuttal to the defense's closing
argument was improper under Griffin v. California,
380 U.S. 609 (1965). Dkt. No. 13-2 at 415-517.
On July
17, 2019, respondent filed the instant motion to dismiss for
failure to exhaust state remedies. Dkt. No. 13. As of this
date, petitioner has not filed an opposition. Nor has he
filed a motion to stay and abey this action. However, on
September 29, 2019, petitioner filed with the Court the
California Supreme Court's September 11, 2019 summary
denial of his habeas petition. Dkt. No. 16.
DISCUSSION
Respondent
argues that the petition should be dismissed as unexhausted
because only Claim No. 6 (instructional error when the trial
court failed to give the requested pinpoint instruction) and
Claim No. 8 (prosecutor's closing argument constituted
misconduct) are exhausted.[1] Dkt. No. 13. Respondent acknowledges
that Claim Nos. 1, 2, 4, 5 and 7 were presented to the
California Supreme Court in the June 10, 2019 state habeas
petition, but argues that the petition should be dismissed as
a mixed petition because as of the date the motion to dismiss
was filed, the California Supreme Court had not yet ruled on
the state habeas petition. Respondent further argues that
Claim No. 3 was not fairly presented to the California
Supreme Court because it was omitted from the habeas petition
filed with the California Supreme Court. Petitioner has not
responded to the motion to dismiss, but presumably he
contends that the motion should be denied because as of
September 11, 2019, his state court remedies have been
exhausted. Respondent did not responded to petitioner's
filing of the California Supreme Court's September 11,
2019 denial of petitioner's state habeas petition.
A.
Legal Standard
Prisoners
in state custody who wish to challenge collaterally in
federal habeas proceedings either the fact or length of their
confinement are first required to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings, by providing the highest state court available
with a fair opportunity to rule on the merits of each and
every claim they seek to raise in federal court. See
28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455
U.S. 509, 515-16 (1982). The state's highest court must
be given an opportunity to rule on the claims even if review
is discretionary. See O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (petitioner must invoke “one
complete round of the State's established appellate
review process.”). To comply with the fair presentation
requirement, a claim must be raised at every level of
appellate review; raising a claim for the first time on
discretionary review ...